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implied limits on Congressional power

Traditionally, Congress was prohibited from regulating the "traditional governmental functions" of the states. [National League of Cities v Usery] (invalidating minimum wage laws as applied to state government employees). Legislation that did not affect "States as States," however, were not invalidated. [Hodel v Virginia Surface Mining Association] (upholding federal statute regulating strip mining practices, which had been argued to affect states' traditional power of land-use regulation). Furthermore, if Congress had the power to preempt an area of state regulation entirely, it had the power to regulate lesser included areas that might fall under traditional state interests. [FERC v Mississippi] (upholding federal scheme requiring states to choose from specified list of approaches to public utility pricing).

The Supreme Court rejected the test of [National League of Cities v Usery] in 1985, by rejecting the "traditional governmental functions" test as "unworkable" and inviting federal judges to make policy decisions for the states. [Garcia v San Antonio MTA]. Rather, "procedural safeguards inherent in the structure of the federal system" should serve as the main check to excessive federal regulation of the states, who should be free to engage "within the realm of authority left open to them . . . in any activity that their citizens choose for the common weal." [Garcia v San Antonio MTA]; but see [Garcia v San Antonio MTA] (Powell dissenting) (arguing that the federal political system was too influenced by national-level politics and special interests to serve as an effective check on excessive federal regulation; see also [Garcia v San Antonio MTA] (OConnor dissenting) (arguing that the federal system must have "legal substance, any core of constitutional right that courts will enfrorce").

As a result, under [Garcia v San Antonio MTA] previously invalid federal regulation of states would be acceptable, given the potential for political relief in the federal structure. See, for example, [South Carolina v Baker] (upholidng federal statute removing tax exemptions for state bonds, in part on the grounds that the state did not allege the lack of any right "to participate in the national political process").

New York and beyond

In [New York v US], the Court changed course and held that the federal government may not "commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." [New York v US] (striking down federal regulation forcing states to "take title" to radioactive waste if they failed to dispose of it in a federally specified way). Congress' power extends to regulating individuals directly, and cannot regulate the states as states, regardless of the strength of the national interest. [New York v US]; [Printz v US] (refusing to "balance" state interests against federal interests since the sovereignty of the state was threatened); but see [New York v US] (Stevens dissenting) arguing that the Constitution did empower Congress to regulate states as states, given that the Constitution strengthened, not weakened, the federal government). The federal government may not directly regulate either the state legislature, see [New York v US], or state executive actors. [US v Printz] (invalidating part of Brady Bill requiring state policemen to conduct background checks for gun purchasers).

Note that the federal government can encourage states to act in a particular way, through making contracts under the Taxing and Spending Clause, or by offering states the chance to regulate activity themselves where Congress could otherwise regulate the activity directly under the Commerce Clause. [New York v US]. In such schemes, the State "retains the ultimate decision" whether to act in a "program of cooperative federalism," so that the citizens of each state can hold the actions of their state government accountable. In this vein, the federal government may not mandate "policymaking" by the states. [Printz v US] (holding that federal statute requiring state policemen to conduct background checks on gun purchasers was invalid in part because it would necessarily involve officers to make "policy" about how much time they would spend). Federal "commandeering," on the other hand, undermines the accountability of both federal and state governments. See also [Printz v US] (invalidating Brady Bill where the bill would force states to absorb the cost of federal regulation, while giving the credit to federal legislators). Note that a bargain between two choices, both mandated by Congress, may effectively serve as "commandeering" if neither option allows the state to choose its own actions. [New York v US] (striking down statute that would force states either to take title to the waste or regulate it according to federal standards).

Furthermore, states cannot consent to an unconstitutional expansion of federal power. [New York v US] (striking down bargain between multiple states to consent to invalidated federal statute). "The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments. State sovereignty is not just an end to itself." See also [New York v US] (White dissenting) (pointing out that there was here no failure of the national political process, that the federal government was acting in a "classic" role of "arbiter" between the states). Likewise, the Court will interpret federal regulatory power narrowly to avoid regulating state interests unless clearly intended by the Congress, Gonzales v Oregon (striking down Attorney General's use of power to register physicians to forbid state assisted suicide practices in part on the grounds that Congress would not "use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police power"), or if state action on the subject is ongoing. [Medellin v Dretke] (reserving judgment on whether the President could constitutionally order state courts to apply treaties where state litigation was still ongoing).

Note, however, to the extent that States act as private actors and not as sovereigns, they may be constitutionally regulated by the Congress. See [Reno v Condon] (upholding federal statute that regulated the disclosure of personal information in state-run motor vehicle databases, even though the statute would require "time and effort" on the part of state employees, on the grounds that the act did not require the states "in their sovereign capacity to regulate their own citizens," but rather regulated the states "as owners of databases").

Important factors include:
- whether Congressional regulation is "generally applicable" or regulates the "States as States"
- whether the states can protect against federal intrusion through political representation in Congress
- whether Congressional regulation would undermine state and local accountability
- whether Congress is "commandeering" the state legislature or executive (cf. the Supremacy Clause for state judiciaries)
- how clearly Congress has attempted to assert federal power over a particular area Gonzales v Oregon
- whether a traditional area of state authority (education, police powers, medicine, etc.) is involved
- whether the federal regulation relies on a prior state regulation Gonzales v Oregon
- whether the federal regulation of state action might interfere with other federal prerogatives [Printz v US] (striking down statute requiring state policemen to conduct background checks in part where it interfered with the federal executive power and duty to execute the laws)
- whether the federal regulation would otherwise require Congress to "purchase" the consent of the states by giving them a chance to refuse


treaty power
[Missouri v Holland] (holding that MO could not challenge the treaty ratified by Congress to restrict hunting of migratory birds, on the grounds that the treaty did not explicitly violate the Constitution, and that Amendment X did not apply given the broader national interests the federal government held in protecting the birds)

"Commandeering" cases
[National League of Cities v Usery] (prohibiting federal regulation under FLSA of "traditional governmental functions" against the states)
[Garcia v San Antonio MTA] (rejecting National League of Cities test that shielded states from federal regulation of their "traditional governmental functions", on grounds that the judiciary is not competent to objectively decide what functions are traditionally reserved to the states, and that the federal political system provides the best means for the states to check excessive federal interests; see also O'Connor dissenting, arguing that the "States as States" have certain areas of responsibility which Congress should respect, and that trusting Congress not to exceed its powers was not sufficient)
[New York v US] (striking down law that forced States to "take title" to radioactive waste if they failed to regulate its disposal in a certain way, on grounds that Congress had the power to regulate individuals but not states directly, that regulating states directly undermines the electoral accountability of both bodies, where Congress commanded the states either to regulate the waste or to be stuck with it, making the state take title would "commandeer" the state treasury and legislature by making them spend money on the waste, and where the states had no authority to consent to the unconstitutional enlargmement of Congressional power; see also White, J, dissenting, arguing that the states should have a wide latitude to consent and cooperate with each other and with the federal government, and that history shows a wide expansion of national as opposed to state interests; and Stevens, J, arguing that nothing in the Constitution diminished Congressional power under the Articles of Confederation to directly command the states)
[Printz v US] (striking down part of Brady Bill requiring state law enforcement to perform background checks, on the grounds that "compelled enlistment" of state executive actors by the Congress was "unprecedented," that allowing the federal government to do so would "immeasurably" increase federal power, that the command conflicted with the President's Article II duty to faithfully execute the laws, and that the statute constituted "commandeering" of state executive actors where the statute inevitably nvolved policymaking, allowed federal politiicans to take credit for the costs and efforts that state actors had to absorb, that Congress also unconstitutionally forced the state to carry the risk of something going wrong, and refusing to "balance" state interests against federal interests since the sovereignty of the state was threatened; see also Stevens, J, dissenting, citing the Federalist for the proposition that the federal government would be able to enlist the "ordinary magistracy" of the states, so that "the federal government was to have the power to demand that local officials implement national policy programs," citing [Garcia v San Antonio MTA] for the political-constraints argument that the States are thoroughly represented in Congress, that otherwise the federal government would be forced to create unwieldy national bureacracies rather than more efficiently employing the states, and citing Holmes for the proposition that the federal balance required "a little play in its joints")
[Reno v Condon] (upholding federal statute that regulated the disclosure of personal information in state-run motor vehicle databases, even though the statute would require "time and effort" on the part of state employees, on the grounds that the act did not require the states "in their sovereign capacity to regulate their own citizens," but rather regulated the states "as owners of databases")
[Medellin v Dretke] (dismissing per curiam certiorari granted to Mexican national seeking habeas relief in federal courts on the grounds of a ICJ decision about consular access requiring signatories to give "full force" to the treaty provisions, where the President had issued an order to states to respect the ICJ decision, on the grounds that the petitioner's ongoing state habeas litigation might grant relief, and that several unresolved questions still existed about the procedural status of the national's state claim; see also Ginsburg, J, concurring, arguing that prematurely upsetting the state court process is inconsistent with the law of judgments; see also O'Connor, J, dissenting, arguing that international treaty obligations created a serious problem that was likely to recur, that the ICJ had held that the requirement to give "full force" to treaty provisions was inconsistent with the possibility that the petitioner's claim might be denied on procedural default grounds; see also Breyer, J, dissenting, arguing that state court review would likely lead to S Ct review anyway)
Gonzales v Oregon (striking down the Attorney General's interpretation of the CSA to prohibit the use of controlled substances for assisted suicide, on the grounds that the Attorney General's power to register or deregister phyisicians did not clearly extend to regulating medical practice by deciding the scope of a "legitimate medical purpose," that the Attorney General must usually defer on medical judgments such as whether to schedule a substance under the CSA to the judgment of the Secretary of Health and Human Services, and that Congress does not "hide elephants in mouseholes" by granting broad powers through vaguely worded provisions, and that the CSA did not intend to regulate medicine generally, in light of the States' broad police powers, but rather assumes the prior existence of a state-regulated medical profession, and that since the CSA, which seeks to curb drug abuse, not change the nature of medical treatment, is the only broad federal regulation of the medical profession, and that the Court should assume that Congress would not "use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police power;" see also Scalia, J, dissenting, arguing that "legitimate medical practice" clearly does not include suicide, that the states do not have the power to completely define the scope of "legitimate medical practice," so that the majority is actually defining its own standard of "legitimate medical practice" based on its purposive reading of the CSA, that the Attorney General's power under the CSA to refuse use of controlled substances where "inconsistent with the public interest" clearly includes the power to exclude uses such as steroid abuse and assisted suicide, and that the federal government enjoys police powers under the Commerce Clause "for the purpose of protecting public morality," citing Champion v Ames)

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Q: What are 3 limitations to congressional power?
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