Home Living Anti-Commandeering

Anti-Commandeering

images courtesy: Library of Congress and Open Siddur Project


The following authored by: 10th Amendment Center

download full PDF

This strategy of non-cooperation has not only been proven effective, but it’s also been repeatedly validated by the Supreme Court, with multiple opinions holding that the federal government cannot require states to expend resources or provide personnel to help it carry out its acts or programs.

Known as “anti-commandeering,” this doctrine rests primarily on five major SCOTUS cases. The Court first established the doctrine in the 1842 fugitive slave case, Prigg v. Pennsylvania.

Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect.

The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.”

Over the years, the Court built on this decision in four more landmark cases: New York v. U.S. (1992), Printz v. U.S. (1997) National Federation of Businesses v. Sebelius (2012) and Murphy v. NCAA (2018).

The Printz case serves as the cornerstone. Justice Scalia wrote the opinion for the majority.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ 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; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

This captures the heart of Madison’s advice in Federalist No. 46 – a refusal to cooperate with officers of the Union.”

In 2018, the Supreme Court reaffirmed and even expanded the anti-commandeering doctrine, holding that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued: The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States …

Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.”

It’s important to understand that no determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.

The crux of the anti-commandeering doctrine is that a state has the right to direct its personnel and resources as it sees fit. It can prohibit the enforcement of federal laws or the implementation of federal programs for any reason at all. A state could withdraw state resources from the enforcement of a federal act just because it’s Tuesday and there’s snow on the ground.

But won’t the feds just pull funding if a state refuses to cooperate? The anti-commandeering doctrine even limits this option for federal coercion. In simple terms, the federal government cannot use funding to coerce states to take some desired action. Independent Business v. Sebelius P. 29 directly addressed this issue.

In this case, the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place.

Justice John Roberts argued that allowing Congress to essentially punish states that refused to go along violates the constitutional separation of powers. This built on the standard set years earlier, in South Dakota v. Dole.

In 1984, Congress passed the National Minimum Drinking Age Act, withholding 5 percent of highway funds from states that didn’t raise their drinking age to 21 in the first year, and 10 percent per year thereafter. South Dakota refused and challenged the law in court.

Although the Supreme Court upheld the federal law, it came with some pretty specific limitations. One was a requirement that the amount of funding could be seen only as an “inducement,” and not be “so coercive as to pass the point at which pressure turns into compulsion.” In this case, a withholding of 5 percent was below this threshold as the Court noted this “constituted less than half of one percent of South Dakota’s budget at the time.”

Additionally, the Court has held that funding conditions on the States must be reasonably related. For example, if the state refuses to enforce federal marijuana laws, the federal government can possibly cut some funding relating to drug war enforcement that the state agreed to participate in initially, but it can’t take away education funding to punish a state for not cooperating with marijuana prohibition.

In practice, the federal government can withhold funding directly related to any action that a state refuses to take, but with some significant limitations and caveats. And it can’t take away unrelated funding.