OCTOBER TERM, 1991
Syllabus
NEW YORK
v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 91-543. Argued March 30, 1992-Decided June 19, 1992*
Faced with a looming shortage of disposal sites for low level
radioactive waste in 31 States, Congress enacted the Low-Level
Radioactive Waste Policy Amendments Act of 1985, which, among other
things, imposes upon States, either alone or in "regional compacts"
with other States, the obligation to provide for the disposal of
waste generated within their borders, and contains three provisions
setting forth "incentives" to States to comply with that
obligation. The first set of incentives-the monetary
incentives-works in three steps: (1) States with disposal sites are
authorized to impose a surcharge on radioactive waste received from
other States; (2) the Secretary of Energy collects a portion of
this surcharge and places it in an escrow account; and (3) States
achieving a series of milestones in developing sites receive
portions of this fund. The second set of incentives-the access
incentives-authorizes sited States and regional compacts gradually
to increase the cost of access to their sites, and then to deny
access altogether, to waste generated in States that do not meet
federal deadlines. The so-called third "incentive"-the take title
provision-specifies that a State or regional compact that fails to
provide for the disposal of all internally generated waste by a
particular date must, upon the request of the waste's generator or
owner, take title to and possession of the waste and become liable
for all damages suffered by the generator or owner as a result of
the State's failure to promptly take possession. Petitioners, New
York State and two of its counties, filed this suit against the
United States, seeking a declaratory judgment that,
inter
alia, the three incentives provisions are inconsistent with the
Tenth Amendment-which declares that "powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States" -and with the Guarantee Clause
of Article IV, § 4-which directs the United States to "guarantee to
every State ... a Republican Form of Government." The District
Court dismissed the complaint, and the Court of Appeals
affirmed.
*Together with No. 91-558, County of Allegany, New York v.
United States et al., and No. 91-563, County of Cortland, New York
v. United States et al., also on certiorari to the same court.
145
Held:
1. The Act's monetary incentives and access incentives
provIsIOns are consistent with the Constitution's allocation of
power between the Federal and State Governments, but the take title
provision is not. Pp. 155-183.
(a) In ascertaining whether any of the challenged provisions
oversteps the boundary between federal and state power, the Court
must determine whether it is authorized by the affirmative grants
to Congress contained in Article 1's Commerce and Spending Clauses
or whether it invades the province of state sovereignty reserved by
the Tenth Amendment. Pp. 155-159.
(b) Although regulation of the interstate market in the disposal
of low level radioactive waste is well within Congress' Commerce
Clause authority, cf.
Philadelphia v.
New Jersey,
437 U. S. 617,
621-623, and Congress could, if it wished, pre-empt entirely state
regulation 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, and
the history of the Constitutional Convention, demonstrates that
Congress may not commandeer the States' legislative processes by
directly compelling them to enact and enforce a federal regulatory
program, but must exercise legislative authority directly upon
individuals. Pp. 159-166.
(c) Nevertheless, there are a variety of methods, short of
outright coercion, by which Congress may urge a State to adopt a
legislative program consistent with federal interests. As relevant
here, Congress may, under its spending power, attach conditions on
the receipt of federal funds, so long as such conditions meet four
requirements. See,
e. g., South Dakota v.
Dole,
483 U. S. 203,
206-208, and n. 3. Moreover, where Congress has the authority to
regulate private activity under the Commerce Clause, it may, as
part of a program of "cooperative federalism," offer States the
choice of regulating that activity according to federal standards
or 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 the
Act's provision obligating the States to dispose of their
radioactive wastes as a separate mandate to regulate according to
Congress' instructions. That would upset the usual constitutional
balance of federal and state powers, whereas the constitutional
problem is avoided by construing the Act as a whole to comprise
three 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 not
inconsistent with the Tenth Amendment. The authorization to sited
States to impose surcharges is an unexceptionable exercise of
Congress' power to enable
146
Syllabus
the States to burden interstate commerce. The Secretary's
collection of a percentage of the surcharge is no more than a
federal tax on interstate commerce, which petitioners do not claim
to be an invalid exercise of either Congress' commerce or taxing
power. Finally, in conditioning the States' receipt of federal
funds upon their achieving specified milestones, Congress has not
exceeded its Spending Clause authority in any of the four respects
identified by this Court in
Dole, supra, at 207-208.
Petitioners' objection to the
form of the expenditures as
nonfederal is unavailing, since the Spending Clause has never been
construed to deprive Congress of the power to collect money in a
segregated trust fund and spend it for a particular purpose, and
since the States' ability largely to control whether they will pay
into the escrow account or receive a share was expressly provided
by Congress as a method of encouraging them to regulate according
to the federal plan. pp. 171-173.
(f) The Act's access incentives constitute a conditional
exercise of Congress' commerce power along the lines of that
approved in
Hodel, supra, at 288, and thus do not intrude on
the States' Tenth Amendment sovereignty. These incentives present
nonsited States with the choice either of regulating waste disposal
according to federal standards or having their waste-producing
residents denied access to disposal sites. They are not compelled
to regulate, expend any funds, or participate in any federal
program, and they may continue to regulate waste in their own way
if 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 coercive
alternativeseither accepting ownership of waste or regulating
according to Congress' instructions-the provision lies outside
Congress' enumerated powers and is inconsistent with the Tenth
Amendment. On the one hand, either forcing the transfer of waste
from generators to the States or requiring the States to become
liable for the generators' damages would "commandeer" States into
the service of federal regulatory purposes. On the other hand,
requiring the States to regulate pursuant to Congress' direction
would present a simple unconstitutional command to implement
legislation enacted by Congress. Thus, the States' "choice" is no
choice at all. Pp. 174-177.
(h) The United States' alternative arguments purporting to find
limited circumstances in which congressional compulsion of state
regulation is constitutionally permissible-that such compulsion is
justified where the federal interest is sufficiently important;
that the Constitution does, in some circumstances, permit federal
directives to state governments; and that the Constitution endows
Congress with the power
147
to arbitrate disputes between States in interstate commerce-are
rejected. Pp. 177-180.
(i) Also rejected is the sited state respondents' argument that
the Act cannot be ruled an unconstitutional infringement of New
York sovereignty because officials of that State lent their
support, and consented, to the Act's passage. A departure from the
Constitution's plan for the intergovernmental allocation of
authority cannot be ratified by the "consent" of state officials,
since the Constitution protects state sovereignty for the benefit
of individuals, not States or their governments, and since the
officials' interests may not coincide with the Constitution's
allocation. Nor does New York's prior support estop it from
asserting the Act's unconstitutionality. Pp. 180-183.
(j) Even assuming that the Guarantee Clause provides a basis
upon which a State or its subdivisions may sue to enjoin the
enforcement of a federal statute, petitioners have not made out a
claim that the Act's money incentives and access incentives
provisions are inconsistent with that Clause. Neither the threat of
loss of federal funds nor the possibility that the State's waste
producers may find themselves excluded from other States' disposal
sites can reasonably be said to deny New York a republican form of
government. pp. 183-186.
2. The take title provision is severable from the rest of the
Act, since severance will not prevent the operation of the rest of
the Act or defeat its purpose of encouraging the States to attain
local or regional selfsufficiency in low level radioactive waste
disposal; since the Act still includes two incentives to encourage
States along this road; since a State whose waste generators are
unable to gain access to out-ofstate disposal sites may encounter
considerable internal pressure to provide for disposal, even
without the prospect of taking title; and since any burden caused
by New York's failure to secure a site will not be borne by other
States' residents because the sited regional compacts need not
accept New York's waste after the final transition period. Pp.
186-187.
942 F.2d
114, affirmed in part and reversed in part.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and THOMAS, JJ.,
joined, and in Parts III-A and III-B of which WHITE, BLACKMUN, and
STEVENS, JJ., joined. WHITE, J., filed an opinion concurring in
part and dissenting in part, in which BLACKMUN and STEVENS, JJ.,
joined,
post, p. 188. STEVENS, J., filed an opinion
concurring in part and dissenting in part,
post, p.210.
148
Counsel
Peter H. Schiff, Deputy Solicitor General of New York,
argued the cause for petitioners in all cases. With him on the
briefs for petitioner in No. 91-543 were
Robert Abrams,
Attorney General,
Jerry Boone, Solicitor General, and
John McConnell, Assistant Attorney General.
Edward F.
Premo II filed briefs for petitioner in No. 91-558.
Michael
B. Gerrard, Deborah Goldberg, and
Patrick M. Snyder
filed briefs for petitioner in No. 91-563.
Deputy Solicitor General Wallace argued the cause for the
federal respondents in all cases. With him on the brief were
Solicitor General Starr, Acting Assistant Attorney General
Hartman, Ronald J. Mann, Anne S.
Almy, Louise
F. Milkman, and
Jeffrey P. Kehne. William B. Collins,
Senior Assistant Attorney General of Washington, argued the cause
for the state respondents in Nos. 91-543 and 91-563. On the brief
were
Kenneth 0.
Eikenberry, Attorney General of
Washington,
T. Travis Medlock, Attorney General of South
Carolina, and
James Patrick Hudson, Deputy Attorney General,
Frankie Sue Del Papa, Attorney General of Nevada, and
Allen T. Miller, Jr., Assistant Attorney General.t
tBriefs of
amici curiae urging reversal were filed for
the State of Ohio et al. by
Lee Fisher, Attorney General of
Ohio, and
James O.
Payne, Jr., Mary Kay Smith, and
Patricia A. Delaney, Assistant Attorneys General, and by the
Attorneys General for their respective jurisdictions as
follows:
Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E.
Lungren of California, Elizabeth Barrett-Anderson of Guam, Roland W
Burris of Illinois, Linley E. Pearson of Indiana, Chris Gorman of
Kentucky, Michael E. Carpenter of Maine, Scott Harshbarger of
Massachusetts, Don Stenberg of Nebraska, Robert
J. Del Tufo
of New Jersey, Ernest D. Preate, Jr., of Pennsylvania, James E.
O'Neil of Rhode Island, Mark W Barnett of South Dakota, Dan Morales
of Texas, Mario Palumbo of West Virginia, and James E. Doyle of
Wisconsin; and for the Council of State Governments by Stewart
Abercrombie Baker.
Briefs of
amici curiae urging affirmance were filed for
the American College of Nuclear Physicians et al. by
Harold
F.
Reis; for the American Federation of Labor and Congress
of Industrial Organizations by
Robert M. Weinberg, David
Silberman, and
Laurence Gold; and for the Rocky
149
JUSTICE O'CONNOR delivered the opinion of the Court. These cases
implicate one of our Nation's newest problems of public policy and
perhaps our oldest question of constitutionallaw. The public policy
issue involves the disposal of radioactive waste: In these cases,
we address the constitutionality of three provisions of the
Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L.
99-240, 99 Stat. 1842, 42 U. S. C. § 2021b
et seq. The
constitutional question is as old as the Constitution: It consists
of discerning the proper division of authority between the Federal
Government and the States. We conclude that while Congress has
substantial power under the Constitution to encourage the States to
provide for the disposal of the radioactive waste generated within
their borders, the Constitution does not confer upon Congress the
ability simply to compel the States to do so. We therefore find
that only two of the Act's three provisions at issue are consistent
with the Constitution's allocation of power to the Federal
Government.
I
We live in a world full of low level radioactive waste.
Radioactive material is present in luminous watch dials, smoke
alarms, measurement devices, medical fluids, research materials,
and the protective gear and construction materials used by workers
at nuclear power plants. Low level radioactive waste is generated
by the Government, by hospitals, by research institutions, and by
various industries. The waste must be isolated from humans for long
periods 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 of
Connecticut by
Richard Blumenthal, Attorney General, and
Aaron S.
Bayer, Deputy Attorney General; for the
State of Michigan by
Frank J. Kelley, Attorney
General,
Gay Secor Hardy, Solicitor General, and
Thomas
L. Casey, A. Michael Leffler, and
John C.
Scherbarth, Assistant Attorneys General; and for US Ecology,
Inc., by
Irwin Goldbloom.
150
often for hundreds of years. Millions of cubic feet of low level
radioactive waste must be disposed of each year. See App.
110a-111a; Berkovitz, Waste Wars: Did Congress "Nuke" State
Sovereignty in the Low-Level Radioactive Waste Policy Amendments
Act of 1985?, 11 Harv. Envtl. L. Rev. 437, 439-440 (1987).
Our Nation's first site for the land disposal of commercial low
level radioactive waste opened in 1962 in Beatty, Nevada. Five more
sites 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 was
full, and water management problems caused the closure of the sites
in Kentucky and New York. As a result, since 1979 only three
disposal sitesthose in Nevada, Washington, and South Carolina-have
been in operation. Waste generated in the rest of the country must
be shipped to one of these three sites for disposal. See Low-Level
Radioactive Waste Regulation 39-40 (M. Burns ed. 1988).
In 1979, both the Washington and Nevada sites were forced to
shut down temporarily, leaving South Carolina to shoulder the
responsibility of storing low level radioactive waste produced in
every part of the country. The Governor of South Carolina,
understandably perturbed, ordered a 50% reduction in the quantity
of waste accepted at the Barnwell site. The Governors of Washington
and Nevada announced plans to shut their sites permanently. App.
142a, 152a.
Faced with the possibility that the Nation would be left with no
disposal sites for low level radioactive waste, Congress responded
by enacting the Low-Level Radioactive Waste Policy Act, Pub. L.
96-573, 94 Stat. 3347. Relying largely on a report submitted by the
National Governors' Association, see App. 105a-141a, Congress
declared a federal policy of holding each State "responsible for
providing for the availability of capacity either within or outside
the State
151
for the disposal of low-level radioactive waste generated within
its borders," and found that such waste could be disposed of "most
safely and efficiently ... on a regional basis." § 4(a)(1), 94
Stat. 3348. The 1980 Act authorized States to enter into regional
compacts that, once ratified by Congress, would have the authority
beginning in 1986 to restrict the use of their disposal facilities
to waste generated within member States. § 4(a)(2)(B), 94 Stat.
3348. The 1980 Act included no penalties for States that failed to
participate in this plan.
By 1985, only three approved regional compacts had operational
disposal facilities; not surprisingly, these were the compacts
formed around South Carolina, Nevada, and Washington, the three
sited States. The following year, the 1980 Act would have given
these three compacts the ability to exclude waste from nonmembers,
and the remaining 31 States would have had no assured outlet for
their low level radioactive waste. With this prospect looming,
Congress once again took up the issue of waste disposal. The result
was the legislation challenged here, the Low-Level Radioactive
Waste Policy Amendments Act of 1985.
The 1985 Act was again based largely on a proposal submitted by
the National Governors' Association. In broad outline, the Act
embodies a compromise among the sited and unsited States. The sited
States agreed to extend for seven years the period in which they
would accept low level radioactive waste from other States. In
exchange, the unsited States agreed to end their reliance on the
sited States by 1992.
The mechanics of this compromise are intricate. The Act directs:
"Each State shall be responsible for providing, either by itself or
in cooperation with other States, for the disposal of ... low-level
radioactive waste generated within the State," 42 U. S. C. §
2021c(a)(1)(A), with the exception of certain waste generated by
the Federal Government, §§ 2021c(a)(1)(B), 2021c(b). The Act
authorizes States to
152
"enter into such [interstate] compacts as may be necessary to
provide for the establishment and operation of regional disposal
facilities for low-level radioactive waste." § 2021d(a)(2). For an
additional seven years beyond the period contemplated by the 1980
Act, from the beginning of 1986 through the end of 1992, the three
existing disposal sites "shall make disposal capacity available for
low-level radioactive waste generated by any source," with certain
exceptions not relevant here. § 2021e(a)(2). But the three States
in which the disposal sites are located are permitted to exact a
graduated surcharge for waste arriving from outside the regional
compact-in 1986-1987, $10 per cubic foot; in 1988-1989, $20 per
cubic foot; and in 1990-1992, $40 per cubic foot. § 2021e(d)(1).
After the 7-year transition period expires, approved regional
compacts may exclude radioactive waste generated outside the
region. § 2021d(c).
The Act provides three types of incentives to encourage the
States to comply with their statutory obligation to provide for the
disposal of waste generated within their borders.
1.
Monetary incentives. One quarter of the surcharges
collected by the sited States must be transferred to an escrow
account held by the Secretary of Energy. § 2021e (d)(2)(A). The
Secretary then makes payments from this account to each State that
has complied with a series of deadlines. By July 1, 1986, each
State was to have ratified legislation either joining a regional
compact or indicating an intent to develop a disposal facility
within the State. §§ 2021e (e)(1)(A),2021e(d)(2)(B)(i). By January
1, 1988, each unsited compact was to have identified the State in
which its facility would be located, and each compact or
stand-alone State was to have developed a siting plan and taken
other identified steps. §§ 2021e(e)(1)(B), 2021e(d)(2)(B)(ii). By
January 1, 1990, each State or compact was to have filed a complete
application for a license to operate a disposal facility, or the
Governor of any State that had not filed an application was to have
certified that the State would be capable of disposing
153
of all waste generated in the State after 1992. §§ 2021e
(e)(l)(C), 2021e(d)(2)(B)(iii). The rest of the account is to be
paid out to those States or compacts able to dispose of all low
level radioactive waste generated within their borders by January
1, 1993. § 2021e(d)(2)(B)(iv). Each State that has not met the 1993
deadline must either take title to the waste generated within its
borders or forfeit to the waste generators the incentive payments
it has received. § 2021e(d)(2)(C).
2. Access incentives. The second type of incentive
involves the denial of access to disposal sites. States that fail
to meet the July 1986 deadline may be charged twice the ordinary
surcharge for the remainder of 1986 and may be denied access to
disposal facilities thereafter. § 2021e(e)(2) (A). States that fail
to meet the 1988 deadline may be charged double surcharges for the
first half of 1988 and quadruple surcharges for the second half of
1988, and may be denied access thereafter. § 2021e(e)(2)(B). States
that fail to meet the 1990 deadline may be denied access. § 2021e
(e)(2)(C). Finally, States that have not filed complete
applications by January 1, 1992, for a license to operate a
disposal facility, or States belonging to compacts that have not
filed such applications, may be charged triple surcharges. §§
2021e(e)(1)(D), 2021e(e)(2)(D).
3. The take title provision. The third type of incentive
is the most severe. The Act provides:
"If a State (or, where applicable, a compact region) in which
low-level radioactive waste is generated is unable to provide for
the disposal of all such waste generated within such State or
compact region by January 1, 1996, each State in which such waste
is generated, upon the request of the generator or owner of the
waste, shall take title to the waste, be obligated to take
possession of the waste, and shall be liable for all damages
directly or indirectly incurred by such generator or owner as a
consequence of the failure of the State to take possession
154
of the waste as soon after January 1, 1996, as the generator or
owner 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 has
approved nine regional compacts, encompassing 42 of the States. All
six unsited compacts and four of the unaffiliated States have met
the 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 large
share of the Nation's low level radioactive waste, did not join a
regional compact. Instead, the State complied with the Act's
requirements by enacting legislation providing for the siting and
financing of a disposal facility in New York. The State has
identified five potential sites, three in Allegany County and two
in Cortland County. Residents of the two counties oppose the
State's choice of location. App. 29a-30a, 66a-68a.
Petitioners-the State of New York and the two counties-filed
this suit against the United States in 1990. They sought a
declaratory judgment that the Act is inconsistent with the Tenth
and Eleventh Amendments to the Constitution, with the Due Process
Clause of the Fifth Amendment, and with the Guarantee Clause of
Article IV of the Constitution. The States of Washington, Nevada,
and South Carolina intervened as defendants. The District Court
dismissed the complaint. 757 F. Supp. 10 (NDNY 1990). The Court of
Appeals affirmed.
942 F.2d
114 (CA2 1991). Petitioners have abandoned their due process
and Eleventh Amendment claims on their way up the appellate ladder;
as the cases stand before us, petitioners claim only that the Act
is inconsistent with the Tenth Amendment and the Guarantee
Clause.
155
II A
In 1788, in the course of explaining to the citizens of New York
why 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 to
originate questions of intricacy and nicety; and these may, in a
particular manner, be expected to flow from the the establishment
of a constitution founded upon the total or partial incorporation
of a number of distinct sovereignties." The Federalist No. 82, p.
491 (C. Rossiter ed. 1961). Hamilton's prediction has proved quite
accurate. While no one disputes the proposition that "[t]he
Constitution 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]he
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people"; the task of ascertaining the
constitutionalline between federal and state power has given rise
to many of the Court's most difficult and celebrated cases. At
least as far back as
Martin v.
Hunter's Lessee, 1
Wheat. 304, 324 (1816), the Court has resolved questions "of great
importance and delicacy" in determining whether particular
sovereign powers have been granted by the Constitution to the
Federal Government or have been retained by the States.
These questions can be viewed in either of two ways. In some
cases the Court has inquired whether an Act of Congress is
authorized by one of the powers delegated to Congress in Article I
of the Constitution. See,
e. g., Perez v.
United
States, 402 U. S.
146 (1971);
McCulloch v.
Maryland, 4 Wheat. 316
(1819). In other cases the Court has sought to determine whether an
Act of Congress invades the province of state sovereignty reserved
by the Tenth Amendment. See,
e. g., Garcia v.
San Antonio
Metropolitan Transit Au-
156
thority, 469 U. S. 528 (1985);
Lane County v.
Oregon, 7 Wall. 71 (1869). In a case
like these, involving the division of authority between federal and
state governments, the two inquiries are mirror images of each
other. If a power is delegated to Congress in the Constitution, the
Tenth Amendment expressly disclaims any reservation of that power
to the States; if a power is an attribute of state sovereignty
reserved by the Tenth Amendment, it is necessarily a power the
Constitution has not conferred on Congress. See
United
States 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 a
truism 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 mere
affirmation of what, upon any just reasoning, is a necessary rule
of interpreting the constitution. Being an instrument of limited
and enumerated powers, it follows irresistibly, that what is not
conferred, 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: "The
States unquestionably do retai[n] a significant measure of
sovereign authority ... to the extent that the Constitution has not
divested them of their original powers and transferred those powers
to the Federal Government."
Garcia v.
San Antonio
Metropolitan Transit Authority, supra, at 549 (internal
quotation marks omitted).
Congress exercises its conferred powers subject to the
limitations contained in the Constitution. Thus, for example, under
the Commerce Clause Congress may regulate publishers engaged in
interstate commerce, but Congress is constrained in the exercise of
that power by the First Amendment. The Tenth Amendment likewise
restrains the power of Congress, but this limit is not derived from
the text of the Tenth Amendment itself, which, as we have
discussed,
157
is essentially a tautology. Instead, the Tenth Amendment
confirms that the power of the Federal Government is subject to
limits 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 a
limitation on an Article I power.
The benefits of this federal structure have been extensively
cataloged elsewhere, see,
e. g., Gregory v.
Ashcroft,
supra, at 457-460; Merritt, The Guarantee Clause and State
Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 3-10
(1988); McConnell, Federalism: Evaluating the Founders' Design, 54
U. Chi. L. Rev. 1484, 1491-1511 (1987), but they need not concern
us here. Our task would be the same even if one could prove that
federalism secured no advantages to anyone. It consists not of
devising our preferred system of government, but of understanding
and applying the framework set forth in the Constitution. "The
question is not what power the Federal Government ought to have but
what powers in fact have been given by the people."
United
States v.
Butler, 297 U. S. 1, 63 (1936).
This framework has been sufficiently flexible over the past two
centuries to allow for enormous changes in the nature of
government. The Federal Government undertakes activities today that
would have been unimaginable to the Framers in two senses; first,
because the Framers would not have conceived that
any
government would conduct such activities; and second, because the
Framers would not have believed that the
Federal Government,
rather than the States, would assume such responsibilities. Yet the
powers conferred upon the Federal Government by the Constitution
were phrased in language broad enough to allow for the expansion of
the Federal Government's role. Among the provisions of the
Constitution that have been particularly important in this regard,
three concern us here.
First, the Constitution allocates to Congress the power "[t]o
regulate Commerce ... among the several States."
158
Art. I, § 8, cl. 3. Interstate commerce was an established
feature of life in the late 18th century. See,
e. g.,
The Federalist No. 42, p. 267 (C. Rossiter ed. 1961) ("The defect
of power in the existing Confederacy to regulate the commerce
between its several members [has] been clearly pointed out by
experience"). The volume of interstate commerce and the range of
commonly accepted objects of government regulation have, however,
expanded considerably in the last 200 years, and the regulatory
authority of Congress has expanded along with them. As interstate
commerce has become ubiquitous, activities once considered purely
local have come to have effects on the national economy, and have
accordingly 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 Debts
and provide for the ... general Welfare of the United States." Art.
I, § 8, cl. 1. As conventional notions of the proper objects of
government spending have changed over the years, so has the ability
of Congress to "fix the terms on which it shall disburse federal
money to the States."
Pennhurst State School and Hospital v.
Halderman, 451
U. S. 1, 17 (1981). Compare,
e. g., United States v.
Butler, supra, at 72-75 (spending power does not authorize
Congress to subsidize farmers), with
South Dakota v.
Dole, 483 U.
S. 203 (1987) (spending power permits Congress to condition
highway funds on States' adoption of minimum drinking age). While
the spending power is "subject to several general restrictions
articulated in our cases,"
id., at 207, these restrictions
have not been so severe as to prevent the regulatory authority of
Congress from generally keeping up with the growth of the federal
budget.
The Court's broad construction of Congress' power under the
Commerce and Spending Clauses has of course been guided, as it has
with respect to Congress' power generally, by the Constitution's
Necessary and Proper Clause, which
159
authorizes Congress "[t]o make all Laws which shall be necessary
and 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., at
411-421.
Finally, the Constitution provides that "the Laws of the United
States ... shall be the supreme Law of the Land ... any Thing in
the Constitution or Laws of any State to the Contrary
notwithstanding." U. S. Const., Art. VI, cl. 2. As the Federal
Government's willingness to exercise power within the confines of
the Constitution has grown, the authority of the States has
correspondingly diminished to the extent that federal and state
policies have conflicted. See,
e. g., Shaw v.
Delta Air
Lines, Inc., 463
U. S. 85 (1983). We have observed that the Supremacy Clause
gives the Federal Government "a decided advantage in thee] delicate
balance" 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 with
respect to the States has changed over the years, therefore, but
the constitutional structure underlying and limiting that authority
has 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 in
these cases as one of ascertaining the limits of the power
delegated to the Federal Government under the affirmative
provisions of the Constitution or one of discerning the core of
sovereignty retained by the States under the Tenth Amendment.
Either way, we must determine whether any of the three challenged
provisions of the Low-Level Radioactive Waste Policy Amendments Act
of 1985 oversteps the boundary between federal and state
authority.
B
Petitioners do not contend that Congress lacks the power to
regulate the disposal of low level radioactive waste. Space in
radioactive waste disposal sites is frequently sold
160
by residents of one State to residents of another. Regulation of
the resulting interstate market in waste disposal is therefore well
within Congress' authority under the Commerce Clause. Cf.
Philadelphia v.
New Jersey, 437 U. S. 617, 621-623
(1978);
Fort Gratiot Sanitary Landfill, Inc. v.
Michigan
Dept. of Natural Resources, 504 U. S. 353, 359
(1992). Petitioners likewise do not dispute that under the
Supremacy Clause Congress could, if it wished, pre-empt state
radioactive waste regulation. Petitioners contend only that the
Tenth Amendment limits the power of Congress to regulate in the way
it has chosen. Rather than addressing the problem of waste disposal
by directly regulating the generators and disposers of waste,
petitioners argue, Congress has impermissibly directed the States
to regulate in this field.
Most of our recent cases interpreting the Tenth Amendment have
concerned the authority of Congress to subject state governments to
generally applicable laws. The Court's jurisprudence in this area
has traveled an unsteady path. See
Maryland v.
Wirtz,
392 U. S. 183
(1968) (state schools and hospitals are subject to Fair Labor
Standards Act);
National League of Cities v.
Usery,
426 U. S. 833
(1976) (overruling
Wirtz) (state employers are
not
subject to Fair Labor Standards Act);
Garcia v.
San
Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985)
(overruling
National League of Cities) (state employers are
once again subject to Fair Labor Standards Act). See also
New
York 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 presents
no 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 to
the same legislation applicable to private parties. Cf.
FERC
v.
Mississippi, 456 U. S. 742, 758-759
(1982).
161
This litigation instead concerns the circumstances under which
Congress may use the States as implements of regulation; that is,
whether Congress may direct or otherwise motivate the States to
regulate in a particular field or a particular way. Our cases have
established a few principles that guide our resolution of the
issue.
1
As an initial matter, Congress may not simply "commandee[r] the
legislative processes of the States by directly compelling them to
enact 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 Surface
Mining Control and Reclamation Act of 1977 precisely because it did
not "commandeer" the States into regulating mining. The
Court found that "the States are not compelled to enforce the
steep-slope standards, to expend any state funds, or to participate
in the federal regulatory program in any manner whatsoever. If a
State does not wish to submit a proposed permanent program that
complies with the Act and implementing regulations, the full
regulatory burden will be borne by the Federal Government."
Ibid.
The Court reached the same conclusion the following year in
FERC v.
Mississippi, supra. At issue in
FERC
was the Public Utility Regulatory Policies Act of 1978, a federal
statute encouraging the States in various ways to develop programs
to combat the Nation's energy crisis. We observed that "this Court
never has sanctioned explicitly a federal command to the States to
promulgate and enforce laws and regulations."
Id., at
761-762. As in
Hodel, the Court upheld the statute at issue
because it did not view the statute as such a command. The Court
emphasized: "Titles I and III of [the Public Utility Regulatory
Policies Act of 1978 (PURPA)] require
only consideration of
federal standards. And if a State has no utilities commission, or
simply stops regulating in the field, it need not even entertain
the federal
162
proposals." 456 U. S., at 764 (emphasis in original). Because
"[t]here [wa]s nothing in PURPA 'directly compelling' the States to
enact a legislative program," the statute was not inconsistent with
the Constitution's division of authority between the Federal
Government and the States.
Id., at 765 (quoting
Hodel
v.
Virginia Surface Mining &
Reclamation Assn., Inc.,
supra, at 288). See also
South Carolina v.
Baker,
supra, at 513 (noting "the possibility that the Tenth Amendment
might set some limits on Congress' power to compel States to
regulate on behalf of federal interests");
Garcia v.
San
Antonio Metropolitan Transit Authority, supra, at 556
(same).
These statements in
FERC and
Hodel were not
innovations. While Congress has substantial powers to govern the
Nation directly, including in areas of intimate concern to the
States, the Constitution has never been understood to confer upon
Congress the ability to require the States to govern according to
Congress' instructions. See
Coyle v.
Smith, 221 U. S. 559, 565
(1911). The Court has been explicit about this distinction. "Both
the States and the United States existed before the Constitution.
The people, through that instrument, established a more perfect
union by substituting a national government, acting, with ample
power,
directly upon the citizens, instead of the
Confederate government, which acted with powers, greatly
restricted, only upon the States."
Lane County v.
Oregon, 7 Wall., at 76 (emphasis added). The Court has made
the same point with more rhetorical flourish, although perhaps with
less precision, on a number of occasions. In Chief Justice Chase's
much-quoted words, "the preservation of the States, and the
maintenance of their governments, are as much within the design and
care of the Constitution as the preservation of the Union and the
maintenance of the National government. The Constitution, in all
its provisions, looks to an indestructible Union, composed of
indestructible States."
Texas v.
White, 7 Wall. 700,
725 (1869). See also
Metcalf &
Eddy v.
Mitchell, 269
163
u. S. 514, 523 (1926) ("[N]either government may destroy the
other nor curtail in any substantial manner the exercise of its
powers");
Tafflin v.
Levitt, 493 U. S. 455, 458 (1990)
("[U]nder our federal system, the States possess sovereignty
concurrent with that of the Federal Government");
Gregory v.
Ashcroft, 501 U. S., at 461 ("[T]he States retain
substantial sovereign powers under our constitutional scheme,
powers with which Congress does not readily interfere").
Indeed, the question whether the Constitution should permit
Congress to employ state governments as regulatory agencies was a
topic of lively debate among the Framers. Under the Articles of
Confederation, Congress lacked the authority in most respects to
govern the people directly. In practice, Congress "could not
directly 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 Yale
L. J. 1425, 1447 (1987).
The inadequacy of this governmental structure was responsible in
part for the Constitutional Convention. Alexander Hamilton
observed: "The great and radical vice in the construction of the
existing Confederation is in the principle of LEGISLATION for
STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES,
and as contradistinguished from the INDIVIDUALS of whom they
consist." The Federalist No. 15, p. 108 (C. Rossiter ed. 1961). As
Hamilton saw it, "we must resolve to incorporate into our plan
those ingredients which may be considered as forming the
characteristic difference between a league and a government; we
must extend the authority of the Union to the persons of the
citizens-the only proper objects of government."
Id., at
109. The new National Government "must carry its agency to the
persons of the citizens. It must stand in need of no intermediate
legislations .... The government of the Union, like that of each
State, must be able to address itself immediately to the hopes and
fears of individuals."
Id., No. 16, at 116.
164
The Convention generated a great number of proposals for the
structure 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 upon
individuals, without employing the States as intermediaries. 1
Records of the Federal Convention of 1787, p. 21 (M. Farrand ed.
1911). Under the New Jersey Plan, as first introduced by William
Paterson, Congress would continue to require the approval of the
States before legislating, as it had under the Articles of
Confederation. 1
id., at 243-244. These two plans underwent
various revisions as the Convention progressed, but they remained
the two primary options discussed by the delegates. One frequently
expressed objection to the New Jersey Plan was that it might
require the Federal Government to coerce the States into
implementing 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 national
plan. 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 by
Mr. P[aterson's] plane, the 2nd] by real legislation as prop[osed]
by the other plan. Coercion [is]
impracticable, expensive, cruel
to individuals .... We must resort therefore to a national
Legislation over individuals." 1
id., at 255-256
(emphasis in original). Madison echoed this view: "The
practicability of making laws, with coercive sanctions, for the
States as political bodies, had been exploded on all hands." 2
id., at 9.
Under one preliminary draft of what would become the New Jersey
Plan, state governments would occupy a position relative to
Congress similar to that contemplated by the Act at issue in these
cases: "[T]he laws of the United States ought, as far as may be
consistent with the common interests of the Union, to be carried
into execution by the judiciary and executive officers of the
respective states, wherein the exe-
165
cution thereof is required." 3
id., at 616. This idea
apparently never even progressed so far as to be debated by the
delegates, as contemporary accounts of the Convention do not
mention any such discussion. The delegates' many descriptions of
the Virginia and New Jersey Plans speak only in general terms about
whether Congress was to derive its authority from the people or
from the States, and whether it was to issue directives to
individuals or to States. See 1
id., at 260-280.
In the end, the Convention opted for a Constitution in which
Congress would exercise its legislative authority directly over
individuals rather than over States; for a variety of reasons, it
rejected the New Jersey Plan in favor of the Virginia Plan. 1
id., at 313. This choice was made clear to the subsequent
state ratifying conventions. Oliver Ellsworth, a member of the
Connecticut delegation in Philadelphia, explained the distinction
to his State's convention:
"This Constitution does not attempt to coerce sovereign bodies,
states, in their political capacity .... But this legal coercion
singles out the ... individual." 2 J. Elliot, Debates on the
Federal Constitution 197 (2d ed. 1863). Charles Pinckney, another
delegate at the Constitutional Convention, emphasized to the South
Carolina House of Representatives that in Philadelphia "the
necessity of having a government which should at once operate upon
the people, and not upon the states, was conceived to be
indispensable by every delegation present." 4
id., at 256.
Rufus King, one of Massachusetts' delegates, returned home to
support ratification by recalling the Commonwealth's unhappy
experience under the Articles of Confederation and arguing: "Laws,
to be effective, therefore, must not be laid on states, but upon
individuals." 2
id., at 56. At New York's convention,
Hamilton (another delegate in Philadelphia) exclaimed: "But can we
believe that one state will ever suffer itself to be used as an
instrument of coercion? The thing is a dream; it is impossible.
Then we are brought to this dilemma-either a federal
166
standing army is to enforce the requisitions, or the federal
treasury is left without supplies, and the government without
support. What, sir, is the cure for this great evil? Nothing, but
to enable the national laws to operate on individuals, in the same
manner as those of the states do." 2
id., at 233. At North
Carolina's convention, Samuel Spencer recognized that "all the laws
of the Confederation were binding on the states in their political
capacities, ... but now the thing is entirely different. The laws
of Congress will be binding on individuals." 4
id., at
153.
In providing for a stronger central government, therefore, the
Framers explicitly chose a Constitution that confers upon Congress
the power to regulate individuals, not States. As we have seen, the
Court has consistently respected this choice. We have always
understood that even where Congress has the authority under the
Constitution to pass laws requiring or prohibiting certain acts, it
lacks the power directly to compel the States to require or
prohibit those acts.
E. g., FERC v.
Mississippi, 456
U. 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 allocation
of power contained in the Commerce Clause, for example, authorizes
Congress to regulate interstate commerce directly; it does not
authorize Congress to regulate state governments' regulation of
interstate commerce.
2
This is not to say that Congress lacks the ability to encourage
a State to regulate in a particular way, or that Congress may not
hold out incentives to the States as a method of influencing a
State's policy choices. Our cases have identified a variety of
methods, short of outright coercion, by which Congress may urge a
State to adopt a legislative program consistent with federal
interests. Two of these methods are of particular relevance
here.
167
First, under Congress' spending power, "Congress may attach
conditions on the receipt of federal funds."
South Dakota v.
Dole, 483 U. S., at 206. Such conditions must (among other
requirements) bear some relationship to the purpose of the federal
spending,
id., at 207-208, and n. 3; otherwise, of course,
the spending power could render academic the Constitution's other
grants and limits of federal authority. Where the recipient of
federal funds is a State, as is not unusual today, the conditions
attached to the funds by Congress may influence a State's
legislative choices. See Kaden, Politics, Money, and State
Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 874-881
(1979).
Dole was one such case: The Court found no
constitutional flaw in a federal statute directing the Secretary of
Transportation to withhold federal highway funds from States
failing to adopt Congress' choice of a minimum drinking age.
Similar examples abound. See,
e. g., Fullilove v.
Klutznick, 448
U. S. 448, 478-480 (1980);
Massachusetts v.
United
States, 435 U. S.
444, 461-462 (1978);
Lau v.
Nichols, 414 U. S. 563, 568-569
(1974); Oklahoma v.
United States Civil Service
Comm'n, 330 U. S.
127, 142-144 (1947).
Second, where Congress has the authority to regulate private
activity under the Commerce Clause, we have recognized Congress'
power to offer States the choice of regulating that activity
according to federal standards or having state law pre-empted by
federal regulation.
Hodel v.
Virginia Surface Mining
&
Reclamation Assn., Inc., supra, at 288. See also
FERC v.
Mississippi, supra, at 764-765. This
arrangement, which has been termed "a program of cooperative
federalism,"
Hodel, supra, at 289, is replicated in numerous
federal statutory schemes. These include the Clean Water Act, 86
Stat. 816, as amended, 33 U. S. C. § 1251
et seq., see
Arkansas v.
Oklahoma, 503 U. S. 91, 101 (1992)
(Clean Water Act "anticipates a partnership between the States and
the Federal Government, animated by a shared objective"); the
Occupational Safety and Health Act of 1970,
168
84 Stat. 1590, 29 U. S. C. § 651
et seq., see
Gade
v.
National Solid Wastes Management Assn., ante, at 97; the
Resource Conservation and Recovery Act of 1976, 90 Stat. 2796, as
amended, 42 U. S. C. § 6901
et seq., see
Department of
Energy v.
Ohio, 503 U. S. 607, 611-612
(1992); and the Alaska National Interest Lands Conservation Act, 94
Stat. 2374, 16 U. S. C. § 3101
et seq., see
Kenaitze
Indian Tribe v.
Alaska, 860 F.2d
312, 314 (CA9 1988), cert. denied, 491 U. S. 905 (1989).
By either of these methods, as by any other permissible method
of encouraging a State to conform to federal policy choices, the
residents of the State retain the ultimate decision as to whether
or not the State will comply. If a State's citizens view federal
policy as sufficiently contrary to local interests, they may elect
to decline a federal grant. If state residents would prefer their
government to devote its attention and resources to problems other
than those deemed important by Congress, they may choose to have
the Federal Government rather than the State bear the expense of a
federally mandated regulatory program, and they may continue to
supplement that program to the extent state law is not pre-empted.
Where Congress encourages state regulation rather than compelling
it, state governments remain responsive to the local electorate's
preferences; state officials remain accountable to the people.
By contrast, where the Federal Government compels States to
regulate, the accountability of both state and federal officials is
diminished. If the citizens of New York, for example, do not
consider that making provision for the disposal of radioactive
waste is in their best interest, they may elect state officials who
share their view. That view can always be pre-empted under the
Supremacy Clause if it is contrary to the national view, but in
such a case it is the Federal Government that makes the decision in
full view of the public, and it will be federal officials that
suffer the consequences if the decision turns out to be detrimental
or unpopular.
169
But where the Federal Government directs the States to regulate,
it may be state officials who will bear the brunt of public
disapproval, while the federal officials who devised the regulatory
program may remain insulated from the electoral ramifications of
their decision. Accountability is thus diminished when, due to
federal coercion, elected state officials cannot regulate in
accordance with the views of the local electorate in matters not
pre-empted by federal regulation. See Merritt, 88 Colum. L. Rev.,
at 61-62; La Pierre, Political Accountability in the National
Political Process-The Alternative to Judicial Review of Federalism
Issues, 80 Nw. U. L. Rev. 577, 639-665 (1985).
With these principles in mind, we turn to the three challenged
provisions of the Low-Level Radioactive Waste Policy Amendments Act
of 1985.
III
The parties in these cases advance two quite different views of
the Act. As petitioners see it, the Act imposes a requirement
directly upon the States that they regulate in the field of
radioactive waste disposal in order to meet Congress' mandate that
"[e]ach State shall be responsible for providing ... for the
disposal of ... low-level radioactive waste." 42 U. S. C. §
2021c(a)(1)(A). Petitioners understand this provision as a direct
command from Congress, enforceable independent of the three sets of
incentives provided by the Act. Respondents, on the other hand,
read this provision together with the incentives, and see the Act
as affording the States three sets of choices. According to
respondents, the Act permits a State to choose first between
regulating pursuant to federal standards and losing the right to a
share of the Secretary of Energy's escrow account; to choose second
between regulating pursuant to federal standards and progressively
losing access to disposal sites in other States; and to choose
third between regulating pursuant to federal standards and taking
title to the waste generated within the State.
170
Respondents thus interpret § 2021c(a)(1)(A), despite the
statute's use of the word "shall," to provide no more than an
option which a State may elect or eschew.
The Act could plausibly be understood either as a mandate to
regulate 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 them
to 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 of
the provision for two reasons. First, such an outcome would, to say
the least, "upset the usual constitutional balance of federal and
state powers."
Gregory v.
Ashcroft, 501 U. S., at
460. "[I]t is incumbent upon the federal courts to be certain of
Congress' intent before finding that federal law overrides this
balance,"
ibid. (internal quotation marks omitted), but the
Act's amenability to an equally plausible alternative construction
prevents us from possessing such certainty. Second, "where an
otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly contrary to
the intent of Congress."
Edward J. DeBartolo
Corp. v.
Florida Gulf Coast Building &
Construction Trades Council, 485 U. S. 568, 575 (1988). This
rule of statutory construction pushes us away from petitioners'
understanding of § 2021c (a)(l)(A) of the Act, under which it
compels 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 States
independent of the remainder of the Act. Construed as a whole, the
Act comprises three sets of "incentives" for the States to provide
for the disposal of low level radioactive waste generated within
their borders. We consider each in turn.
171
A
The first set of incentives works in three steps. First,
Congress has authorized States with disposal sites to impose a
surcharge on radioactive waste received from other States. Second,
the Secretary of Energy collects a portion of this surcharge and
places the money in an escrow account. Third, States achieving a
series of milestones receive portions of this fund.
The first of these steps is an unexceptionable exercise of
Congress' power to authorize the States to burden interstate
commerce. While the Commerce Clause has long been understood to
limit the States' ability to discriminate against interstate
commerce, see,
e. g., Wyoming v.
Oklahoma, 502 U. S.
437, 454-455 (1992);
Cooley v.
Board of Wardens of Port
of Philadelphia ex rel. Society for Relief of Distressed
Pilots, 12 How. 299 (1852), that limit may be lifted, as it has
been here, by an expression of the "unambiguous intent" of
Congress.
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 the
interstate transport of low level radioactive waste in the absence
of Congress' approval, the States can clearly do so
with
Congress' approval, which is what the Act gives them.
The second step, the Secretary's collection of a percentage of
the surcharge, is no more than a federal tax on interstate
commerce, which petitioners do not claim to be an invalid exercise
of either Congress' commerce or taxing power. Cf.
United
States 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' authority
under the Spending Clause: Congress has placed conditions-the
achievement of the milestones-on the receipt of federal funds.
Petitioners do not contend that Congress has exceeded its authority
in any of the four respects our cases have identified. See
generally
South Dakota v.
Dole, 483 U. S., at
207-208. The expenditure is for the general
172
welfare,
Helvering v.
Davis, 301 U. S. 619, 640-641
(1937); the States are required to use the money they receive for
the purpose of assuring the safe disposal of radioactive waste. 42
U. S. C. § 2021e(d)(2)(E). The conditions imposed are unambiguous,
Pennhurst State School and Hospital v.
Halderman, 451
U. S., at 17; the Act informs the States exactly what they must do
and by when they must do it in order to obtain a share of the
escrow account. The conditions imposed are reasonably related to
the purpose of the expenditure,
Massachusetts v.
United
States, 435 U. S., at 461; both the conditions and the payments
embody Congress' efforts to address the pressing problem of
radioactive waste disposal. Finally, petitioners do not claim that
the conditions imposed by the Act violate any independent
constitutional 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 these
expenditures removes them from the scope of Congress' spending
power. Petitioners emphasize the Act's instruction to the Secretary
of Energy to "deposit all funds received in a special escrow
account. The funds so deposited shall not be the property of the
United States." 42 U. S. C. § 2021e(d)(2)(A). Petitioners argue
that because the money collected and redisbursed to the States is
kept in an account separate from the general treasury, because the
Secretary holds the funds only as a trustee, and because the States
themselves are largely able to control whether they will pay into
the escrow account or receive a share, the Act "in no manner calls
for the spending of federal funds." Reply Brief for Petitioner
State of New York 6.
The Constitution's grant to Congress of the authority to "pay
the Debts and provide for the ... general Welfare" has never,
however, been thought to mandate a particular form of accounting. A
great deal of federal spending comes from segregated trust funds
collected and spent for a particular purpose. See,
e.
g., 23 U. S. C. § 118 (Highway Trust Fund);
173
42 U. S. C. §401(a) (Federal Old-Age and Survivors Insurance
Trust Fund); 42 U. S. C. § 401(b) (Federal Disability Insurance
Trust Fund); 42 U. S. C. § 1395t (Federal Supplementary Medical
Insurance Trust Fund). The Spending Clause has never been construed
to deprive Congress of the power to structure federal spending in
this manner. Petitioners' argument regarding the States' ability to
determine the escrow account's income and disbursements ignores the
fact that Congress specifically provided the States with this
ability as a method of encouraging the States to regulate according
to the federal plan. That the States are able to choose whether
they will receive federal funds does not make the resulting
expenditures any less federal; indeed, the location of such choice
in the States is an inherent element in any conditional exercise of
Congress' spending power.
The Act's first set of incentives, in which Congress has
conditioned grants to the States upon the States' attainment of a
series of milestones, is thus well within the authority of Congress
under the Commerce and Spending Clauses. Because the first set of
incentives is supported by affirmative constitutional grants of
power to Congress, it is not inconsistent with the Tenth
Amendment.
B
In the second set of incentives, Congress has authorized States
and regional compacts with disposal sites gradually to increase the
cost of access to the sites, and then to deny access altogether, to
radioactive waste generated in States that do not meet federal
deadlines. As a simple regulation, this provision would be within
the power of Congress to authorize the States to discriminate
against 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 the
scope of the Commerce Clause, we have recognized the ability of
Congress to offer States the choice of regulating that activity
according to fed-
174
eral standards or having state law pre-empted by federal
regulation. See Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S., at 288; FERC v. Mississippi, 456 U. S., at
764-765.
This is the choice presented to nonsited States by the Act's
second set of incentives: States may either regulate the disposal
of radioactive waste according to federal standards by attaining
local or regional self-sufficiency, or their residents who produce
radioactive waste will be subject to federal regulation authorizing
sited 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 will
fall on those who generate waste and find no outlet for its
disposal, rather than on the State as a sovereign. A State whose
citizens do not wish it to attain the Act's milestones may devote
its attention and its resources to issues its citizens deem more
worthy; the choice remains at all times with the residents of the
State, not with Congress. The State need not expend any funds, or
participate in any federal program, if local residents do not view
such expenditures or participation as worthwhile. Cf.
Hodel,
supra, at 288. Nor must the State abandon the field if it does
not accede to federal direction; the State may continue to regulate
the generation and disposal of radioactive waste in any manner its
citizens see fit.
The Act's second set of incentives thus represents a conditional
exercise of Congress' commerce power, along the lines of those we
have held to be within Congress' authority. As a result, the second
set of incentives does not intrude on the sovereignty reserved to
the States by the Tenth Amendment.
C
The take title provision is of a different character. This third
so-called "incentive" offers States, as an alternative to
regulating pursuant to Congress' direction, the option of taking
title to and possession of the low level radioactive waste
175
generated within their borders and becoming liable for all
damages waste generators suffer as a result of the States' failure
to do so promptly. In this provision, Congress has crossed the line
distinguishing encouragement from coercion.
We must initially reject respondents' suggestion that, because
the take title provision will not take effect until January 1,
1996, petitioners' challenge thereto is unripe. It takes many years
to develop a new disposal site. All parties agree that New York
must take action now in order to avoid the take title provision's
consequences, and no party suggests that the State's waste
generators will have ceased producing waste by 1996. The issue is
thus ripe for review. Cf.
Pacific Gas &
Elec.
Co. v.
State Energy Resources Conservation and Development
Comm'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" of
either accepting ownership of waste or regulating according to the
instructions of Congress. Respondents do not claim that the
Constitution would authorize Congress to impose either option as a
freestanding requirement. On one hand, the Constitution would not
permit Congress simply to transfer radioactive waste from
generators to state governments. Such a forced transfer, standing
alone, would in principle be no different than a congressionally
compelled subsidy from state governments to radioactive waste
producers. The same is true of the provision requiring the States
to become liable for the generators' damages. Standing alone, this
provision would be indistinguishable from an Act of Congress
directing the States to assume the liabilities of certain state
residents. Either type of federal action would "commandeer" state
governments into the service of federal regulatory purposes, and
would for this reason be inconsistent with the Constitution's
division of authority between federal and state governments. On the
other hand, the second alternative held out to state
governments-regulating pur-
176
suant to Congress' direction-would, standing alone, present a
simple command to state governments to implement legislation
enacted by Congress. As we have seen, the Constitution does not
empower Congress to subject state governments to this type of
instruction.
Because an instruction to state governments to take title to
waste, standing alone, would be beyond the authority of Congress,
and because a direct order to regulate, standing alone, would also
be beyond the authority of Congress, it follows that Congress lacks
the power to offer the States a choice between the two. Unlike the
first two sets of incentives, the take title incentive does not
represent the conditional exercise of any congressional power
enumerated in the Constitution. In this provision, Congress has not
held out the threat of exercising its spending power or its
commerce power; it has instead held out the threat, should the
States not regulate according to one federal instruction, of simply
forcing the States to submit to another federal instruction. A
choice between two unconstitutionally coercive regulatory
techniques is no choice at all. Either way, "the Act commandeers
the legislative processes of the States by directly compelling them
to 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 lie
within the authority conferred upon Congress by the
Constitution.
Respondents emphasize the latitude given to the States to
implement Congress' plan. The Act enables the States to regulate
pursuant to Congress' instructions in any number of different ways.
States may avoid taking title by contracting with sited regional
compacts, by building a disposal site alone or as part of a
compact, or by permitting private parties to build a disposal site.
States that host sites may employ a wide range of designs and
disposal methods, subject only to broad federal regulatory limits.
This line of reasoning, however, only underscores the critical
alternative a
177
State lacks: A State may not decline to administer the federal
program. No matter which path the State chooses, it must follow the
direction of Congress.
The take title provision appears to be unique. No other federal
statute has been cited which offers a state government no option
other than that of implementing legislation enacted by Congress.
Whether one views the take title provision as lying outside
Congress' enumerated powers, or as infringing upon the core of
state sovereignty reserved by the Tenth Amendment, the provision is
inconsistent with the federal structure of our Government
established by the Constitution.
IV
Respondents raise a number of objections to this understanding
of the limits of Congress' power.
A
The United States proposes three alternative views of the
constitutional line separating state and federal authority. While
each view concedes that Congress
generally may not compel
state governments to regulate pursuant to federal direction, each
purports to find a limited domain in which such coercion is
permitted by the Constitution.
First, the United States argues that the Constitution's
prohibition of congressional directives to state governments can be
overcome where the federal interest is sufficiently important to
justify state submission. This argument contains a kernel of truth:
In determining whether the Tenth Amendment limits the ability of
Congress to subject state governments to generally applicable laws,
the Court
has in some cases stated that it will evaluate the
strength of federal interests in light of the degree to which such
laws would prevent the State from functioning as a sovereign; that
is, the extent to which such generally applicable laws would impede
a state government's responsibility to represent and be accountable
to the citizens of the State. See,
e. g., EEOC
v.
178
Wyoming, 460 U. S., at 242, n. 17;
Transportation
Union v.
Long Island R. Co., 455 U. S., at 684, n. 9;
National League of Cities v.
Usery, 426 U. S., at
853. The Court has more recently departed from this approach. See,
e. g., South Carolina v.
Baker, 485 U. S., at
512-513;
Garcia v.
San Antonio Metropolitan Transit
Authority, 469 U. S., at 556-557. But whether or not a
particularly strong federal interest enables Congress to bring
state governments within the orbit of generally applicable
federal regulation, no Member of the Court has ever
suggested that such a federal interest would enable Congress to
command a state government to enact
state regulation. No
matter how powerful the federal interest involved, the Constitution
simply does not give Congress the authority to require the States
to regulate. The Constitution instead gives Congress the authority
to regulate matters directly and to pre-empt contrary state
regulation. Where a federal interest is sufficiently strong to
cause Congress to legislate, it must do so directly; it may not
conscript state governments as its agents.
Second, the United States argues that the Constitution does, in
some circumstances, 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 Congress
to 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 the
Supremacy Clause's provision that federal law "shall be the supreme
Law of the Land," enforceable in every State. More to the point,
all involve congressional regulation of individuals, not
congressional requirements that States regulate. Federal statutes
enforceable in state courts do, in a sense, direct state judges to
enforce them, but this sort of federal "direction" of state judges
is mandated by the text of the Suprem-
179
acy Clause. No comparable constitutional provision authorizes
Congress to command state legislatures to legislate.
Additional cases cited by the United States discuss the power of
federal
courts to order state officials to comply with
federal law. See
Puerto Rico v.
Branstad, 483 U. S. 219, 228
(1987); Washington v.
Washington State Commercial
Passenger 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 plainly
confers this authority on the federal courts, the "judicial Power"
of which "shall extend to all Cases, in Law and Equity, arising
under this Constitution, [and] the Laws of the United States ... ;
[and] to Controversies between two or more States; [and] between a
State and Citizens of another State." U. S. Const., Art. III, § 2.
The Constitution contains no analogous grant of authority to
Congress. Moreover, the Supremacy Clause makes federal law
paramount over the contrary positions of state officials; the power
of federal courts to enforce federal law thus presupposes some
authority to order state officials to comply. See
Puerto
Rico v.
Branstad, supra, at 227-228 (overruling
Kentucky v.
Dennison, 24 How. 66 (1861)).
In sum, the cases relied upon by the United States hold only
that federal law is enforceable in state courts and that federal
courts may in proper circumstances order state officials to comply
with federal law, propositions that by no means imply any authority
on the part of Congress to mandate state regulation.
Third, the United States, supported by the three sited regional
compacts as
amici, argues that the Constitution envisions a
role for Congress as an arbiter of interstate disputes. The United
States 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 shared
resources among the States, a category perhaps broad enough to
encompass the allocation of scarce disposal space for radioactive
waste. See,
e. g., Colorado v.
New Mexico, 459 U. S. 176 (1982);
Arizona v.
California, 373 U. S. 546 (1963). The
United States suggests that if the Court may resolve such
interstate disputes, Congress can surely do the same under the
Commerce Clause. The regional compacts support this argument with a
series of quotations from The Federalist and other contemporaneous
documents, which the compacts contend demonstrate that the Framers
established a strong National Legislature for the purpose of
resolving trade disputes among the States. Brief for Rocky Mountain
LowLevel Radioactive Waste Compact et al. as
Amici Curiae
17, and n. 16.
While the Framers no doubt endowed Congress with the power to
regulate interstate commerce in order to avoid further instances of
the interstate trade disputes that were common under the Articles
of Confederation, the Framers did
not intend that Congress
should exercise that power through the mechanism of mandating state
regulation. The Constitution established Congress as "a
superintending authority over the reciprocal trade" among the
States, The Federalist No. 42, p. 268 (C. Rossiter ed. 1961), by
empowering Congress to regulate that trade directly, not by
authorizing Congress to issue trade-related orders to state
governments. As Madison and Hamilton explained, "a sovereignty over
sovereigns, a government over governments, a legislation for
communities, as contradistinguished from individuals, as it is a
solecism in theory, so in practice it is subversive of the order
and ends of civil polity."
Id., No. 20, at 138.
B
The sited state respondents focus their attention on the process
by which the Act was formulated. They correctly
181
observe that public officials representing the State of New York
lent their support to the Act's enactment. A Deputy Commissioner of
the State's Energy Office testified in favor of the Act. See
Low-Level Waste Legislation: Hearings on H. R. 862, H. R. 1046, H.
R. 1083, and H. R. 1267 before the Subcommittee on Energy and the
Environment of the House Committee on Interior and Insular Affairs,
99th Cong., 1st Sess., 97-98, 190-199 (1985) (testimony of Charles
Guinn). Senator Moynihan of New York spoke in support of the Act on
the floor of the Senate. 131 Congo Rec. 38423 (1985). Respondents
note that the Act embodies a bargain among the sited and unsited
States, a compromise to which New York was a willing participant
and from which New York has reaped much benefit. Respondents then
pose what appears at first to be a troubling question: How can a
federal statute be found an unconstitutional infringement of state
sovereignty when state officials consented to the statute's
enactment?
The answer follows from an understanding of the fundamental
purpose served by our Government's federal structure. 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 for the protection of
individuals. State sovereignty is not just an end in itself:
"Rather, federalism secures to citizens the liberties that derive
from the diffusion of sovereign power."
Coleman v.
Thompson, 501
U. S. 722, 759 (1991) (BLACKMUN, J., dissenting). "Just as the
separation and independence of the coordinate branches of the
Federal Government serve to prevent the accumulation of excessive
power in anyone branch, a healthy balance of power between the
States and the Federal Government will reduce the risk of tyranny
and abuse from either front."
Gregory v.
Ash-
182
croft, 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 be
ratified by the "consent" of state officials. An analogy to the
separation of powers among the branches of the Federal Government
clarifies this point. The Constitution's division of power among
the three branches is violated where one branch invades the
territory of another, whether or not the encroached-upon branch
approves the encroachment. In
Buckley v.
Valeo,
424 U. S. 1,
118-137 (1976), for instance, the Court held that Congress had
infringed the President's appointment power, despite the fact that
the President himself had manifested his consent to the statute
that caused the infringement by signing it into law. See
National League of Cities v.
Usery, 426 U. S., at
842, n. 12. In
INS v.
Chadha, 462 U. S. 919, 944-959
(1983), we held that the legislative veto violated the
constitutional requirement that legislation be presented to the
President, despite Presidents' approval of hundreds of statutes
containing a legislative veto provision. See
id., at
944-945. The constitutional authority of Congress cannot be
expanded by the "consent" of the governmental unit whose domain is
thereby narrowed, whether that unit is the Executive Branch or the
States.
State officials thus cannot consent to the enlargement of the
powers of Congress beyond those enumerated in the Constitution.
Indeed, the facts of these cases raise the possibility that
powerful incentives might lead both federal and state officials to
view departures from the federal structure to be in their personal
interests. Most citizens recognize the need for radioactive waste
disposal sites, but few want sites near their homes. As a result,
while it would be well within the authority of either federal or
state officials to choose where the disposal sites will be, it is
likely to be in the political interest of each individual official
to avoid being held accountable to the voters for the choice of
location. If
183
a federal official is faced with the alternatives of choosing a
location or directing the States to do it, the official may well
prefer the latter, as a means of shifting responsibility for the
eventual decision. If a state official is faced with the same set
of alternatives-choosing a location or having Congress direct the
choice of a location-the state official may also prefer the latter,
as it may permit the avoidance of personal responsibility. The
interests of public officials thus may not coincide with the
Constitution's intergovernmental allocation of authority. Where
state officials purport to submit to the direction of Congress in
this manner, federalism is hardly being advanced.
Nor does the State's prior support for the Act estop it from
asserting the Act's unconstitutionality. While New York has
received the benefit of the Act in the form of a few more years of
access to disposal sites in other States, New York has never joined
a regional radioactive waste compact. Any estoppel implications
that might flow from membership in a compact, see
West Virginia
ex rel. Dyer v.
Sims, 341 U. S. 22,35-36 (1951)
(Jackson, J., concurring), thus do not concern us here. The fact
that the Act, like much federal legislation, embodies a compromise
among the States does not elevate the Act (or the antecedent
discussions among representatives of the States) to the status of
an interstate agreement requiring Congress' approval under the
Compact Clause. Cf.
Holmes v.
Jennison, 14 Pet. 540,
572 (1840) (plurality opinion). That a party collaborated with
others in seeking legislation has never been understood to estop
the party from challenging that legislation in subsequent
litigation.
v
Petitioners also contend that the Act is inconsistent with the
Constitution's Guarantee Clause, which directs the United States to
"guarantee to every State in this Union a Republican Form of
Government." U. S. Const., Art. IV; § 4. Because we have found the
take title provision of the Act
184
irreconcilable with the powers delegated to Congress by the
Constitution and hence with the Tenth Amendment's reservation to
the States of those powers not delegated to the Federal Government,
we need only address the applicability of the Guarantee Clause to
the Act's other two challenged provisions.
We approach the issue with some trepidation, because the
Guarantee Clause has been an infrequent basis for litigation
throughout our history. In most of the cases in which the Court has
been asked to apply the Clause, the Court has found the claims
presented 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 of
the 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 referendum
provisions of state constitution).
The view that the Guarantee Clause implicates only
nonjusticiable political questions has its origin in
Luther
v.
Borden, 7 How. 1 (1849), in which the Court was asked to
decide, in the wake of Dorr's Rebellion, which of two rival
governments was the legitimate government of Rhode Island. The
Court held that "it rests with Congress," not the judiciary, "to
decide what government is the established one in a State."
Id., at 42. Over the following century, this limited holding
metamorphosed into the sweeping assertion that "[v]iolation of the
great guaranty of a republican form of government in States cannot
be 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 cases
decided before the holding of
Luther was elevated into a
general rule of nonjusticiability, the Court addressed the merits
of claims founded on the Guarantee Clause without any suggestion
that the claims were not justiciable. See
At-
185
torney 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 "inconsistent
with the guarantee given by the Constitution to each State of a
republican form of government").
More recently, the Court has suggested that perhaps not all
claims under the Guarantee Clause present nonjusticiable political
questions. See
Reynolds v.
Sims, 377 U. S. 533, 582 (1964)
("[S]ome questions raised under the Guarantee Clause are
nonjusticiable"). Contemporary commentators have likewise suggested
that courts should address the merits of such claims, at least in
some circumstances. See,
e. g., L. Tribe, American
Constitutional Law 398 (2d ed. 1988); J. Ely, Democracy and
Distrust: 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, The
Guarantee Clause of Article IV; Section 4: A Study in
Constitutional Desuetude, 46 Minn. L. Rev. 513, 560-565 (1962).
We need not resolve this difficult question today. Even if we
assume that petitioners' claim is justiciable, neither the monetary
incentives provided by the Act nor the possibility that a State's
waste producers may find themselves excluded from the disposal
sites of another State can reasonably be said to deny any State a
republican form of government. As we have seen, these two
incentives represent permissible conditional exercises of Congress'
authority under the Spending and Commerce Clauses respectively, in
forms that have now grown commonplace. Under each, Congress offers
the States a legitimate choice rather than issuing an unavoidable
command. The States thereby retain the ability to set their
legislative agendas; state government officials remain accountable
to the local electorate. The twin threats
186
imposed by the first two challenged provisions of the Actthat
New York may miss out on a share of federal spending or that those
generating radioactive waste within New York may lose out-of-state
disposal outlets-do not pose any realistic risk of altering the
form or the method of functioning of New York's government. Thus
even indulging the assumption that the Guarantee Clause provides a
basis upon which a State or its subdivisions may sue to enjoin the
enforcement of a federal statute, petitioners have not made out
such a claim in these cases.
VI
Having determined that the take title provision exceeds the
powers of Congress, we must consider whether it is severable from
the rest of the Act.
"The standard for determining the severability of an
unconstitutional provision is well established: Unless it is
evident that the Legislature would not have enacted those
provisions which are within its power, independently of that which
is not, the invalid part may be dropped if what is left is fully
operative as a law."
Alaska Airlines, Inc. v.
Brock,
480 U. S. 678,
684 (1987) (internal quotation marks omitted). While the Act itself
contains no statement of whether its provisions are severable,
"[i]n the absence of a severability clause, ... Congress' silence
is just that-silence-and does not raise a presumption against
severability."
Id., at 686. Common sense suggests that where
Congress has enacted a statutory scheme for an obvious purpose, and
where Congress has included a series of provisions operating as
incentives to achieve that purpose, the invalidation of one of the
incentives should not ordinarily cause Congress' overall intent to
be frustrated. As the Court has observed, "it is not to be presumed
that the legislature was legislating for the mere sake of imposing
penalties, but the penalties ... were simply in aid of the main
purpose of the statute. They may fail, and still the great body of
the statute have operative force, and the force contemplated by the
legislature in its
187
enactment."
Reagan v.
Farmers' Loan &
Trust
Co., 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 title
provision may be severed without doing violence to the rest of the
Act. The Act is still operative and it still serves Congress'
objective of encouraging the States to attain local or regional
self-sufficiency in the disposal of low level radioactive waste. It
still includes two incentives that coax the States along this road.
A State whose radioactive waste generators are unable to gain
access to disposal sites in other States may encounter considerable
internal pressure to provide for the disposal of waste, even
without the prospect of taking title. The sited regional compacts
need not accept New York's waste after the 7-year transition period
expires, so any burden caused by New York's failure to secure a
disposal site will not be borne by the residents of other States.
The purpose of the Act is not defeated by the invalidation of the
take title provision, so we may leave the remainder of the Act in
force.
VII
Some truths are so basic that, like the air around us, they are
easily overlooked. Much of the Constitution is concerned with
setting forth the form of our government, and the courts have
traditionally invalidated measures deviating from that form. The
result may appear "formalistic" in a given case to partisans of the
measure at issue, because such measures are typically the product
of the era's perceived necessity. But the Constitution protects us
from our own best intentions: It divides power among sovereigns and
among branches of government precisely so that we may resist the
temptation to concentrate power in one location as an expedient
solution to the crisis of the day. The shortage of disposal sites
for radioactive waste is a pressing national problem, but a
judiciary that licensed extraconstitutional
188
Opinion of WHITE, J.
government with each issue of comparable gravity would, in the
long run, be far worse.
States are not mere political subdivisions of the United States.
State governments are neither regional offices nor administrative
agencies of the Federal Government. The positions occupied by state
officials appear nowhere on the Federal Government's most detailed
organizational chart. The Constitution instead "leaves to the
several States a residuary and inviolable sovereignty," The
Federalist No. 39, p. 245 (C. Rossiter ed. 1961), reserved
explicitly to the States by the Tenth Amendment.
Whatever the outer limits of that sovereignty may be, one thing
is clear: The Federal Government may not compel the States to enact
or administer a federal regulatory program. The Constitution
permits both the Federal Government and the States to enact
legislation regarding the disposal of low level radioactive waste.
The Constitution enables the Federal Government to pre-empt state
regulation contrary to federal interests, and it permits the
Federal Government to hold out incentives to the States as a means
of encouraging them to adopt suggested regulatory schemes. It does
not, however, authorize Congress simply to direct the States to
provide for the disposal of the radioactive waste generated within
their borders. While there may be many constitutional methods of
achieving regional self-sufficiency in radioactive waste disposal,
the method Congress has chosen is not one of them. The judgment of
the Court of Appeals is accordingly
Affirmed in part and reversed in part.
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JusTICE STEVENS
join, concurring in part and dissenting in part.
The Court today affirms the constitutionality of two facets of
the Low-Level Radioactive Waste Policy Amendments Act of 1985 (1985
Act), Pub. L. 99-240, 99 Stat. 1842, 42 U. S. C. § 2021b
et
seq. These provisions include the monetary in-
189
centives from surcharges collected by States with low-level
radioactive waste storage sites and rebated by the Secretary of
Energy to States in compliance with the 1985 Act's deadlines for
achieving regional or in-state disposal, see §§ 2021e(d)(2)(A) and
2021e(d)(2)(B)(iv), and the "access incentives," which deny access
to disposal sites for States that fail to meet certain deadlines
for low-level radioactive waste disposal management, § 2021e(e)(2).
The Court strikes down and severs a third component of the 1985
Act, the "take title" provision, which requires a noncomplying
State to take title to or to assume liability for its low-level
radioactive waste if it fails to provide for the disposal of such
waste by January 1, 1996. § 2021e(d)(2)(C). The Court deems this
last provision unconstitutional under principles of federalism.
Because I believe the Court has mischaracterized the essential
inquiry, misanalyzed the inquiry it has chosen to undertake, and
undervalued the effect the seriousness of this public policy
problem should have on the constitutionality of the take title
provision, I can only join Parts III-A and III-B, and I
respectfully dissent from the rest of its opinion and the judgment
reversing in part the judgment of the Court of Appeals.
I
My disagreement with the Court's analysis begins at the basic
descriptive level of how the legislation at issue in these cases
came to be enacted. The Court goes some way toward setting out the
bare facts, but its omissions cast the statutory context of the
take title provision in the wrong light. To read the Court's
version of events, see
ante, at 150-151, one would think
that Congress was the sole proponent of a solution to the Nation's
low-level radioactive waste problem. Not so. The Low-Level
Radioactive Waste Policy Act of 1980 (1980 Act), Pub. L. 96-573, 94
Stat. 3347, and its amendatory 1985 Act, resulted from the efforts
of state leaders to achieve a state-based set of remedies to the
waste problem. They sought not federal pre-emption or intervention,
but
190
Opinion of WHITE, J.
rather congressional sanction of interstate compromises they had
reached.
The two signal events in 1979 that precipitated movement toward
legislation were the temporary closing of the Nevada disposal site
in July 1979, after several serious transportation-related
incidents, and the temporary shutting of the Washington disposal
site because of similar transportation and packaging problems in
October 1979. At that time the facility in Barnwell, South
Carolina, received approximately three-quarters of the Nation's
low-level radioactive waste, and the Governor ordered a 50 percent
reduction in the amount his State's plant would accept for
disposal. National Governors' Association Task Force on Low-Level
Radioactive Waste Disposal, Low-Level Waste: A Program for Action 3
(Nov. 1980) (lodged with the Clerk of this Court) (hereinafter A
Program for Action). The Governor of Washington threatened to shut
down the Hanford, Washington, facility entirely by 1982 unless
"some meaningful progress occurs toward" development of regional
solutions to the waste disposal problem.
Id., at 4, n. Only
three sites existed in the country for the disposal of low-level
radioactive waste, and the "sited" States confronted the
undesirable alternatives either of continuing to be the dumping
grounds for the entire Nation's low-level waste or of eliminating
or reducing in a constitutional manner the amount of waste accepted
for disposal.
The imminence of a crisis in low-level radioactive waste
management cannot be overstated. In December 1979, the National
Governors' Association convened an eight-member task force to
coordinate policy proposals on behalf of the States. See Status of
Interstate Compacts for the Disposal of Low-Level Radioactive
Waste: Hearing before the Senate Committee on the Judiciary, 98th
Cong., 1st Sess., 8 (1983). In May 1980, the State Planning Council
on Radioactive Waste Management submitted the following unanimous
recommendation to President Carter:
191
"The national policy of the United States on low-level
radioactive waste shall be that every State is responsible for the
disposal of the low-level radioactive waste generated by nondefense
related activities within its boundaries and that States are
authorized to enter into interstate compacts, as necessary, for the
purpose 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 that
the Federal Government could assert its preeminence in achieving a
solution to this problem, but requested instead that Congress
oversee state-developed regional solutions. Accordingly, the
Governors' Task Force urged that "each state should accept primary
responsibility for the safe disposal of low-level radioactive waste
generated within its borders" and that "the states should pursue a
regional approach to the low-level waste disposal problem." A
Program for Action 6.
The Governors went further, however, in recommending that
"Congress should authorize the states to enter into interstate
compacts to establish regional disposal sites" and that "[s]uch
authorization should include the power to exclude waste generated
outside the region from the regional disposal site."
Id., at
7. The Governors had an obvious incentive in urging Congress not to
add more coercive measures to the legislation should the States
fail to comply, but they nevertheless anticipated that Congress
might eventually have to take stronger steps to ensure compliance
with long-range planning deadlines for low-level radioactive waste
management. Accordingly, the Governors' Task Force
"recommend[ed] that Congress defer consideration of sanctions to
compel the establishment of new disposal sites until at least two
years after the enactment of com-
192
Opinion of WHITE, J.
pact consent legislation. States are already confronting the
diminishing capacity of present sites and an unequivocal political
warning from those states' Governors. If at the end of the two-year
period states have not responded effectively, or if problems still
exist, stronger federal action may be necessary. But until that
time, Congress should confine its role to removing obstacles and
allow the states a reasonable chance to solve the problem
themselves." Id., at 8-9.
Such concerns would have been mooted had Congress enacted a
"federal" solution, which the Senate considered in July 1980. See
S. 2189, 96th Cong., 2d Sess. (1980); S. Rep. No. 96-548 (1980)
(detailing legislation calling for federal study, oversight, and
management of radioactive waste). This "federal" solution, however,
was opposed by one of the sited State's Senators, who introduced an
amendment to adopt and implement the recommendations of the State
Planning Council on Radioactive Waste Management. See 126 Congo
Rec. 20136 (1980) (statement of Sen. Thurmond). The "state-based"
solution carried the day, and as enacted, the 1980 Act announced
the "policy of the Federal Government that ... each State is
responsible for providing for the availability of capacity either
within or outside the State for the disposal of low-level
radioactive 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 the
establishment and operation of regional disposal facilities for
low-level radioactive waste," § 4(a)(2)(A), compacts to which
Congress would have to give its consent. § 4(a)(2)(B). The 1980 Act
also provided that, beginning on January 1, 1986, an approved
compact could reserve access to its disposal facilities for those
States which had joined that particular regional compact.
Ibid.
As well described by one of the
amici, the attempts by
States to enter into compacts and to gain congressional ap-
193
pro val sparked a new round of political squabbling between
elected officials from unsited States, who generally opposed
ratification of the compacts that were being formed, and their
counterparts from the sited States, who insisted that the promises
made in the 1980 Act be honored. See Brief for American Federation
of Labor and Congress of Industrial Organizations as
Amicus
Curiae 12-14. In its effort to keep the States at the forefront
of the policy amendment process, the National Governors'
Association organized more than a dozen meetings to achieve a state
consensus. See H. Brown, The Low-Level Waste Handbook: A User's
Guide to the Low-Level Radioactive Waste Policy Amendments Act of
1985, p. iv (Nov. 1986) (describing "the states' desire to
influence any revisions of the 1980 Act").
These discussions were not merely academic. The sited States
grew increasingly and justifiably frustrated by the seeming
inaction of unsited States in meeting the projected actions called
for in the 1980 Act. Thus, as the end of 1985 approached, the sited
States viewed the January 1, 1986, deadline established in the 1980
Act as a "drop-dead" date, on which the regional compacts could
begin excluding the entry of out-of-region waste. See 131 Congo
Rec. 35203 (1985). Since by this time the three disposal facilities
operating in 1980 were still the only such plants accepting
lowlevel radioactive waste, the unsited States perceived a very
serious danger if the three existing facilities actually carried
out their threat to restrict access to the waste generated solely
within their respective compact regions.
A movement thus arose to achieve a compromise between the sited
and the unsited States, in which the sited States agreed to
continue accepting waste in exchange for the imposition of stronger
measures to guarantee compliance with the unsited States'
assurances that they would develop alternative disposal facilities.
As Representative Derrick explained, the compromise 1985
legislation "gives nonsited
194
Opinion of WHITE, J.
States more time to develop disposal sites, but also establishes
a very firm timetable and sanctions for failure to live up [to] the
agreement."
Id., at 35207. Representative Markey added that
"[t]his compromise became the basis for our amendments to the
Low-Level Radioactive Waste Policy Act of 1980. In the process of
drafting such amendments, various concessions have been made by all
sides in an effort to arrive at a bill which all parties could
accept."
Id., at 35205. The bill that in large measure
became the 1985 Act "represent[ed] the diligent negotiating
undertaken 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 the
product of cooperative federalism, in which the States bargained
among themselves to achieve compromises for Congress to
sanction.
There is no need to resummarize the essentials of the 1985
legislation, which the Court does
ante, at 151-154. It does,
however, seem critical to emphasize what is accurately described in
one
amicus brief as the assumption by Congress of "the role
of arbiter of disputes among the several States." Brief for Rocky
Mountain Low-Level Radioactive Waste Compact et al. as
Amici
Curiae 9. Unlike legislation that directs action from the
Federal Government to the States, the 1980 and 1985 Acts reflected
hard-fought agreements among States as refereed by Congress. The
distinction is key, and the Court's failure properly to
characterize this legislation ultimately affects its analysis of
the take title provision's constitutionality.
II
To justify its holding that the take title provision contravenes
the Constitution, the Court posits that "[i]n this provision,
Congress has crossed the line distinguishing encouragement from
coercion."
Ante, at 175. Without attempting to understand
properly the take title provision's place in the
195
interstate bargaining process, the Court isolates the measure
analytically and proceeds to dissect it in a syllogistic fashion.
The Court candidly begins with an argument respondents do
not make: that "the Constitution would not permit Congress
simply to transfer radioactive waste from generators to state
governments."
Ibid. "Such a forced transfer," it continues,
"standing alone, would in principle be no different than a
congressionally compelled subsidy from state governments to
radioactive waste producers."
Ibid. Since this is
not
an argument respondents make, one naturally wonders why the Court
builds its analysis that the take title provision is
unconstitutional around this opening premise. But having carefully
built its straw man, the Court proceeds impressively to knock him
down. "As we have seen," the Court teaches, "the Constitution does
not empower Congress to subject state governments to this type of
instruction."
Ante, at 176.
Curiously absent from the Court's analysis is any effort to
place the take title provision within the overall context of the
legislation. As the discussion in Part I of this opinion suggests,
the 1980 and 1985 statutes were enacted against a backdrop of
national concern over the availability of additional low-level
radioactive waste disposal facilities. Congress could have
pre-empted the field by directly regulating the disposal of this
waste pursuant to its powers under the Commerce and Spending
Clauses, but instead it
unanimously assented to the States'
request for congressional ratification of agreements to which they
had acceded. See 131 Congo Rec. 35252 (1985);
id., at 38425.
As the floor statements of Members of Congress reveal, see
supra, at 193-194, the States wished to take the lead in
achieving a solution to this problem and agreed among themselves to
the various incentives and penalties implemented by Congress to
ensure
196
Opinion of WHITE, J.
adherence to the various deadlines and goals.1 The chief
executives of the States proposed this approach, and I am unmoved
by the Court's vehemence in taking away Congress' authority to
sanction a recalcitrant unsited State now that New York has reaped
the benefits of the sited States' concessions.
A
In my view, New York's actions subsequent to enactment of the
1980 and 1985 Acts fairly indicate its approval of the interstate
agreement process embodied in those laws within the meaning of Art.
I, § 10, cl. 3, of the Constitution, which provides that "[n]o
State shall, without the Consent of Congress, ... enter into any
Agreement or Compact with another State." First, the
States-including New Yorkworked through their Governors to petition
Congress for the 1980 and 1985 Acts. As I have attempted to
demonstrate, these statutes are best understood as the products of
collective state action, rather than as impositions placed on
States by the Federal Government. Second, New York acted in
compliance with the requisites of both statutes in key respects,
thus signifying its assent to the agreement achieved among the
States as codified in these laws. After enactment of the 1980 Act
and pursuant to its provision in § 4(a)(2), 94 Stat. 3348, New York
entered into compact negotiations with several other northeastern
States before withdrawing from them to "go it alone." Indeed, in
1985, as the January 1, 1986, deadline crisis approached and
Congress considered the 1985 legislation that is the subject of
this lawsuit, the Deputy Commissioner for Policy and Planning of
the New
1 As Senator McClure pointed out: "[T]he actions taken in the
Committee on Energy and Natural Resources met the objections and
the objectives of the States point by point; and I want to
underscore what the Senator from Louisiana has indicated-that it is
important that we have real milestones. It is important to note
that the discussions between staffs and principals have produced
a[n] agreement that does have some real teeth in it at some
points." 131 Congo Rec. 38415 (1985).
197
York State Energy Office testified before Congress that "New
York State supports the efforts of Mr. Udall and the members of
this Subcommittee to resolve the current impasse over Congressional
consent to the proposed LLRW compacts and provide interim access
for states and regions without sites.
New York State has been
participating with the National Governors' Association and the
other large states and compact commissions in an effort to further
refine the recommended approach in HR 1083 and reach a consensus
between all groups." See Low-Level Waste Legislation: Hearings
on H. R. 862, H. R. 1046, H. R. 1083, and H. R. 1267 before the
Subcommittee on Energy and the Environment of the House Committee
on 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] continue
indefinitely to provide access to facilities adequate for the
permanent disposal of low-level radioactive waste generated in New
York," 1986 N. Y. Laws, ch. 673, § 2, the state legislature enacted
a law providing for a waste disposal facility to be sited in the
State.
Ibid. This measure comported with the 1985 Act's
proviso that States which did not join a regional compact by July
1, 1986, would have to establish an in-state waste disposal
facility. See 42 U. S. C. § 2021e (e)(l)(A). New York also complied
with another provision of the 1985 Act, § 2021e(e)(1)(B), which
provided that by January 1, 1988, each compact or independent State
would identify a facility location and develop a siting plan, or
contract with a sited compact for access to that region's facility.
By 1988, New York had identified five potential sites in Cortland
and Allegany Counties, but public opposition there caused the State
to reconsider where to locate its waste disposal facility. See
Office of Environmental Restoration and Waste Management, U. S.
Dept. of Energy, Report to Congress in Response to Public Law
99-240: 1990 Annual Report on Low-Level Radioactive Waste
Management Progress 32-35
198
Opinion of WHITE, J.
(1991) (lodged with the Clerk of this Court). As it was
undertaking these initial steps to honor the interstate compromise
embodied in the 1985 Act, New York continued to take full advantage
of the import concession made by the sited States, by exporting its
low-level radioactive waste for the full 7-year extension period
provided in the 1985 Act. By gaining these benefits and complying
with certain of the 1985 Act's deadlines, therefore, New York
fairly evidenced its acceptance of the federal-state
arrangement-including the take title provision.
Although unlike the 42 States that compose the nine existing and
approved regional compacts, see Brief for United States 10, n. 19,
New York has never formalized its assent to the 1980 and 1985
statutes, our cases support the view that New York's actions
signify assent to a constitutional interstate "agreement" for
purposes of Art. I, § 10, cl. 3. In
Holmes v.
Jennison, 14 Pet. 540 (1840), Chief Justice Taney stated
that "[t]he word 'agreement,' does not necessarily import any
direct and express stipulation; nor is it necessary that it should
be in writing. If there is a verbal understanding to which both
parties have assented,
and upon which both are acting, it is
an 'agreement.' And the use of all of these terms, 'treaty,'
'agreement,' 'compact,' show that it was the intention of the
framers of the Constitution to use the broadest and most
comprehensive terms; ... and we shall fail to execute that evident
intention, unless we give to the word 'agreement' its most extended
signification; and so apply it as to prohibit every agreement,
written or verbal, formal or informal, positive or implied, by the
mutual understanding of the parties."
Id., at 572. (emphasis
added). In my view, New York acted in a manner to signify its
assent to the 1985 Act's take title provision as part of the
elaborate compromise reached among the States.
The State should be estopped from asserting the
unconstitutionality of a provision that seeks merely to ensure
that, after deriving substantial advantages from the 1985 Act,
199
New York in fact must live up to its bargain by establishing an
in-state low-level radioactive waste facility or assuming liability
for 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 with
her and Congress to consent to the Compact. She now attempts to
read herself out of this interstate Compact .... Estoppel is not
often to be invoked against a government. But West Virginia assumed
a contractual obligation with equals by permission of another
government that is sovereign in the field.
After Congress and
sister States had been induced to alter their positions and bind
themselves to terms of a covenant, West Virginia should be
estopped from repudiating her act." (Emphasis added.)
B
Even were New York not to be estopped from challenging the take
title provision's constitutionality, I am convinced that, seen as a
term of an agreement entered into between the several States, this
measure proves to be less constitutionally odious than the Court
opines. First, the practical effect of New York's position is that
because it is unwilling to honor its obligations to provide
in-state storage facilities for its low-level radioactive waste,
other States with such plants
must accept New York's
waste, whether they wish to or not. Otherwise, the many
economically and socially beneficial producers of such waste in the
State would have to cease their operations. The Court's refusal to
force New York to accept responsibility for its own problem
inevitably means that some other State's sovereignty will be
impinged by it being forced, for public health reasons, to accept
New York's low-level radioactive waste. I do not understand the
principle of federalism to impede the National Government from
acting as referee among the States to prohibit one from bullying
another.
200
Opinion of WHITE, J.
Moreover, it is utterly reasonable that, in crafting a delicate
compromise between the three overburdened States that provided
low-level radioactive waste disposal facilities and the rest of the
States, Congress would have to ratify some punitive measure as the
ultimate sanction for noncompliance. The take title provision,
though surely onerous, does
not take effect if the generator
of the waste does not request such action, or if the State lives up
to its bargain of providing a waste disposal facility either within
the State or in another State pursuant to a regional compact
arrangement or a separate contract. See 42 U. S. C. §
2021e(d)(2)(C).
Finally, to say, as the Court does, that the incursion on state
sovereignty "cannot be ratified by the 'consent' of state
officials,"
ante, at 182, is flatly wrong. In a case
involving a congressional ratification statute to an interstate
compact, the Court upheld a provision that Tennessee and Missouri
had waived their immunity from suit. Over their objection, the
Court held that "[t]he States who are parties to the compact by
accepting it
and acting under it assume the conditions that
Congress 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 a
State may be found to have waived a fundamental aspect of its
sovereignty-the right to be immune from suit-in the formation of an
interstate compact even when in subsequent litigation it expressly
denied its waiver. I fail to understand the reasoning behind the
Court's selective distinctions among the various aspects of
sovereignty that may and may not be waived and do not believe these
distinctions will survive close analysis in future cases. Hard
public policy choices sometimes require strong measures, and the
Court's holding, while not irremediable, essentially misunderstands
that the 1985 take title provision was part of a complex interstate
agreement about which New York should not now be permitted to
complain.
201
III
The Court announces that it has no occasion to revisit such
decisions 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); and
National League of Cities v.
Usery, 426 U. S. 833 (1976); see
ante, at 160, because "this is not a case in which Congress
has subjected a State to the same legislation applicable to private
parties."
Ibid. Although this statement sends the welcome
signal that the Court does not intend to cut a wide swath through
our recent Tenth Amendment precedents, it nevertheless is
unpersuasive. I have several difficulties with the Court's analysis
in this respect: It builds its rule around an insupportable and
illogical distinction in the types of alleged incursions on state
sovereignty; it derives its rule from cases that do not support its
analysis; it fails to apply the appropriate tests from the cases on
which it purports to base its rule; and it omits any discussion of
the most recent and pertinent test for determining the take title
provision's constitutionality.
The Court's distinction between a federal statute's regulation
of States and private parties for general purposes, as opposed to a
regulation solely on the activities of States, is unsupported by
our recent Tenth Amendment cases. In no case has the Court rested
its holding on such a distinction. Moreover, the Court makes no
effort to explain why this purported distinction should affect the
analysis of Congress' power under general principles of federalism
and the Tenth Amendment. The distinction, facilely thrown out, is
not based on any defensible theory. Certainly one would be hard
pressed to read the spirited exchanges between the Court and
dissenting Justices in
National League of Cities, supra, and
in
Garcia v.
San Antonio Metropolitan Transit Authority,
supra, as having been based on the distinction now drawn by the
Court. An incursion on state sovereignty
202
Opinion of WHITE, J.
hardly seems more constitutionally acceptable if the federal
statute that "commands" specific action also applies to private
parties. The alleged diminution in state authority over its own
affairs is not any less because the federal mandate restricts the
activities of private parties.
Even were such a distinction to be logically sound, the Court's
"anticommandeering" principle cannot persuasively be read as
springing from the two cases cited for the proposition,
Hodel v.
Virginia Surface Mining &
Reclamation
Assn., Inc., 452
U. S. 264, 288 (1981), and
FERC v.
Mississippi,
456 U. S. 742,
761-762 (1982). The Court purports to draw support for its rule
against Congress "commandeer[ing]" state legislative processes from
a solitary statement in dictum in
Hodel. See
ante, at
161: "As an initial matter, Congress may not simply 'commandee[r]
the legislative processes of the States by directly compelling them
to enact and enforce a federal regulatory program'" (quoting
Hodel, supra, at 288). That statement was not necessary to
the decision in
Hodel, which involved the question whether
the Tenth Amendment interfered with Congress' authority to pre-empt
a field of activity that could also be subject to state regulation
and not whether a federal statute could dictate certain actions by
States; the language about "commandeer[ing]" States was classic
dicta. In holding that a federal statute regulating the activities
of private coal mine operators was constitutional, the Court
observed that "[i]t would ... be a radical departure from
long-established precedent for this Court to hold that the Tenth
Amendment prohibits Congress from displacing state police power
laws regulating private activity." 452 U. S., at 292.
The Court also claims support for its rule from our decision in
FERC, and quotes a passage from that case in which we stated
that "'this Court never has sanctioned explicitly a federal command
to the States to promulgate and enforce laws and regulations.'"
Ante, at 161 (quoting 456 U. S., at
203
761-762). In so reciting, the Court extracts from the relevant
passage in a manner that subtly alters the Court's meaning. In
full, the passage reads:
"While this Court never has
sanctioned explicitly a federal command to the States to promulgate
and enforce laws and regulations, cf.
EPA v.
Brown,
431 U. S. 99
(1977),
there are instances where the Court has upheld federal
statutory structures that in effect directed state decisionmakers
to 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 merely
means that we have not had the occasion to address whether Congress
may "command" the States to enact a certain law, and as I have
argued in Parts I and II of this opinion, these cases do not raise
that issue. Moreover, it should go without saying that the
absence of anyon-point precedent from this Court has no
bearing on the question whether Congress has properly exercised its
constitutional authority under Article 1. Silence by this Court on
a subject is not authority for anything.
The Court can scarcely rest on a distinction between federal
laws of general applicability and those ostensibly directed solely
at the activities of States, therefore, when the decisions from
which it derives the rule not only made no such distinction, but
validated federal statutes that constricted state sovereignty in
ways greater than or similar to
2 It is true that under the majority's approach,
Fry is
distinguishable because it involved a statute generally applicable
to both state governments and private parties. The law at issue in
that case was the Economic Stabilization Act of 1970, which imposed
wage and salary limitations on private and state workers alike. In
Fry, the Court upheld this statute's application to the
States over a Tenth Amendment challenge. In my view,
Fry
perfectly captures the weakness of the majority's distinction,
because the law upheld in that case involved a far more pervasive
intrusion on state sovereignty-the authority of state governments
to pay salaries and wages to its employees below the federal
minimum-than the take title provision at issue here.
204
Opinion of WHITE, J.
the take title provision at issue in these cases. As
Fry,
Hodel, and
FERC make clear, our precedents prior to
Garcia upheld provisions in federal statutes that directed
States to undertake certain actions. "[I]t cannot be
constitutionally determinative that the federal regulation is
likely to move the States to act in a given way," we stated in
FERC, "or even to 'coerc[e] the States' into assuming a
regulatory role by affecting their 'freedom to make decisions in
areas of "integral governmental functions."'" 456 U. S., at 766. I
thus am unconvinced that either
Hodel or
FERC
supports the rule announced by the Court.
And if those cases do stand for the proposition that in certain
circumstances Congress may not dictate that the States take
specific actions, it would seem appropriate to apply the test
stated in
FERC for determining those circumstances. The
crucial threshold inquiry in that case was whether the subject
matter was pre-emptible by Congress. See 456 U. S., at 765. "If
Congress can require a state administrative body to consider
proposed regulations as a condition to its continued involvement
in a pre-emptible field-and we hold today that it can-there
is nothing unconstitutional about Congress' requiring certain
procedural minima as that body goes about undertaking its tasks."
Id., at 771 (emphasis added). The
FERC Court went on
to explain that if Congress is legislating in a pre-emptible
field-as the Court concedes it was doing here, see
ante, at
173-174-the proper test before our decision in
Garcia was to
assess whether the alleged intrusions on state sovereignty "do not
threaten the States' 'separate and independent existence,'
Lane
County 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 League
of Cities v.
Usery, 426 U. S., at 852."
FERC,
supra, at 765-766. On
205
neither score does the take title provision raise constitutional
problems. It certainly does not threaten New York's independent
existence nor impair its ability to function effectively in the
system, all the more so since the provision was enacted pursuant to
compromises reached among state leaders and then ratified by
Congress.
It is clear, therefore, that even under the precedents
selectively chosen by the Court, its analysis of the take title
provision's constitutionality in these cases falls far short of
being persuasive. I would also submit, in this connection, that the
Court's attempt to carve out a doctrinal distinction for statutes
that purport solely to regulate state activities is especially
unpersuasive after
Garcia. It is true that in that case we
considered whether a federal statute of general applicability-the
Fair Labor Standards Act-applied to state transportation entities
but our most recent statements have explained the appropriate
analysis in a more general manner. Just last Term, for instance,
JUSTICE O'CONNOR wrote for the Court that "[w]e are constrained in
our ability to consider the limits that the state-federal balance
places on Congress' powers under the Commerce Clause. See
Garcia 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 to
state that "this Court in
Garcia has left primarily to the
political process the protection of the States against
intrusive exercises of Congress' Commerce Clause powers."
Ibid. (emphasis added).
Rather than seek guidance from
FERC and
Hodel,
therefore, the more appropriate analysis should flow from
Garcia, even if these cases do not involve a congressional
law generally applicable to both States and private parties. In
Garcia, we stated the proper inquiry: "[W]e are convinced
that
206
Opinion of WHITE, J.
the fundamental limitation that the constitutional scheme
imposes on the Commerce Clause to protect the 'States as States' is
one of process rather than one of result. Any substantive restraint
on the exercise of Commerce Clause powers must find its
justification in the procedural nature of this basic limitation,
and it must be tailored to compensate for possible failings in the
national political process rather than to dictate a 'sacred
province of state autonomy.'" 469 U. S., at 554 (quoting
EEOC v.
Wyoming, 460 U. S., at 236). Where it
addresses this aspect of respondents' argument, see
ante, at
180-183, the Court tacitly concedes that a failing of the political
process cannot be shown in these cases because it refuses to rebut
the unassailable arguments that the States were well able to look
after themselves in the legislative process that culminated in the
1985 Act's passage. Indeed, New York acknowledges that its
"congressional delegation participated in the drafting and
enactment of both the 1980 and the 1985 Acts." Pet. for Cert. in
No. 91-543, p. 7. The Court rejects this process-based argument by
resorting to generalities and platitudes about the purpose of
federalism being to protect individual rights.
Ultimately, I suppose, the entire structure of our federal
constitutional government can be traced to an interest in
establishing checks and balances to prevent the exercise of tyranny
against individuals. But these fears seem extremely far distant to
me in a situation such as this. We face a crisis of national
proportions in the disposal of low-level radioactive waste, and
Congress has acceded to the wishes of the States by permitting
local decisionmaking rather than imposing a solution from
Washington. New York itselfparticipated and supported passage of
this legislation at both the gubernatorial and federal
representative levels, and then enacted state laws specifically to
comply with the deadlines and timetables agreed upon by the States
in the 1985 Act. For
207
me, the Court's civics lecture has a decidedly hollow ring at a
time when action, rather than rhetoric, is needed to solve a
national problem.3
3 With selective quotations from the era in which the
Constitution was adopted, the majority attempts to bolster its
holding that the take title provision is tantamount to federal
"commandeering" of the States. In view of the many Tenth Amendment
cases decided over the past two decades in which resort to the kind
of historical analysis generated in the majority opinion was not
deemed necessary, I do not read the majority's many invocations of
history to be anything other than elaborate window dressing.
Certainly nowhere does the majority announce that its rule is
compelled by an understanding of what the Framers may have thought
about statutes of the type at issue here. Moreover, I would observe
that, while its quotations add a certain flavor to the opinion, the
majority's historical analysis has a distinctly wooden quality. One
would not know from reading the majority's account, for instance,
that the nature of federal-state relations changed fundamentally
after the Civil War. That conflict produced in its wake a
tremendous expansion in the scope of the Federal Government's
law-making authority, so much so that the persons who helped to
found the Republic would scarcely have recognized the many added
roles the National Government assumed for itself. Moreover, the
majority fails to mention the New Deal era, in which the Court
recognized the enormous growth in Congress' power under the
Commerce Clause. See generally F. Frankfurter & J. Landis, The
Business of the Supreme Court 56-59 (1927); H. Hyman, A More
Perfect Union: The Impact of the Civil War and Reconstruction on
the Constitution (1973); Corwin, The Passing of Dual Federalism, 36
Va. L. Rev. 1 (1950); Wiecek, The Reconstruction of Federal
Judicial Power, 1863-1875, 13 Am. J. Legal Hist. 333 (1969);
Scheiber, State Law and "Industrial Policy" in American
Development, 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, neither
should we read it so selectively as to restrict the proper scope of
Congress' powers under Article I, especially when the history not
mentioned by the majority fully supports a more expansive
understanding of the legislature's authority than may have existed
in the late 18th century.
Given the scanty textual support for the majority's position, it
would be far more sensible to defer to a coordinate branch of
government in its decision to devise a solution to a national
problem of this kind. Certainly in other contexts, principles of
federalism have not insulated States from mandates by the National
Government. The Court has upheld congres-
208
Opinion of WHITE, J.
IV
Though I disagree with the Court's conclusion that the take
title provision is unconstitutional, I do not read its opinion to
preclude Congress from adopting a similar measure through its
powers under the Spending or Commerce Clauses. The Court makes
clear that its objection is to the alleged "commandeer[ingJ"
quality of the take title provision. See
ante, at 175. As
its discussion of the surcharge and rebate incentives reveals, see
ante, at 171-172, the spending power offers a means of
enacting a take title provision under the Court's standards.
Congress could, in other words, condition the payment of funds on
the State's willingness to take title if it has not already
provided a waste disposal facility. Under the scheme upheld in
these cases, for example, moneys collected in the surcharge
provision might be withheld or disbursed depending on a State's
willingness to take title to or otherwise accept responsibility for
the lowlevel radioactive waste generated in state after the
statutory deadline for establishing its own waste disposal facility
has 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 disposal
facility by the appointed deadline (under the statute as presently
drafted, January 1, 1996, §2021e(d)(2)(C)), Congress has the power
pursuant to the Commerce Clause to regulate directly the producers
of the waste. See
ante, at 174. Thus, as I read it, Congress
could amend the statute to say that if a State fails to meet the
January 1, 1996, deadline for
sional 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 require
state courts to hear certain actions, see,
e. g.,
Testa v.
Katt, 330 U. S. 386, 392-394
(1947).
209
achieving a means of waste disposal, and has not taken title to
the waste, no low-level radioactive waste may be shipped out of the
State of New York. See,
e. g., Hodel, 452 U. S., at 288. As
the legislative history of the 1980 and 1985 Acts indicates, faced
with the choice of federal pre-emptive regulation and
self-regulation pursuant to interstate agreement with congressional
consent and ratification, the States decisively chose the latter.
This background suggests that the threat of federal pre-emption may
suffice to induce States to accept responsibility for failing to
meet critical time deadlines for solving their low-level
radioactive waste disposal problems, especially if that federal
intervention also would strip state and local authorities of any
input in locating sites for low-level radioactive waste disposal
facilities. And should Congress amend the statute to meet the
Court's objection and a State refuse to act, the National
Legislature will have ensured at least a federal solution to the
waste management problem.
Finally, our precedents leave open the possibility that Congress
may create federal rights of action in the generators of low-level
radioactive waste against persons acting under color of state law
for their failure to meet certain functions designated in
federal-state programs. Thus, we have upheld 42 U. S. C. § 1983
suits to enforce certain rights created by statutes enacted
pursuant to the Spending Clause, see,
e. g., Wilder v.
Virginia Hospital Assn., 496 U. S. 498 (1990);
Wright v.
Roanoke Redevelopment and Housing
Authority, 479 U.
S. 418 (1987), although Congress must be cautious in spelling
out the federal right clearly and distinctly, see,
e.
g., Suter v.
Artist M., 503 U. S. 347 (1992) (not
permitting a § 1983 suit under a Spending Clause statute when the
ostensible federal right created was too vague and amorphous). In
addition to compensating injured parties for the State's failure to
act, the exposure to liability established by such suits also
potentially serves as an inducement to compliance with the program
mandate.
210
Opinion of STEVENS, J.
v
The ultimate irony of the decision today is that in its
formalistically rigid obeisance to "federalism," the Court gives
Congress fewer incentives to defer to the wishes of state officials
in achieving local solutions to local problems. This legislation
was a classic example of Congress acting as arbiter among the
States in their attempts to accept responsibility for managing a
problem of grave import. The States urged the National Legislature
not to impose from Washington a solution to the country's low-level
radioactive waste management problems. Instead, they sought a
reasonable level of local and regional autonomy consistent with
Art. I, § 10, cl. 3, of the Constitution. By invalidating the
measure designed to ensure compliance for recalcitrant States, such
as New York, the Court upsets the delicate compromise achieved
among the States and forces Congress to erect several additional
formalistic hurdles to clear before achieving exactly the same
objective. Because the Court's justifications for undertaking this
step are unpersuasive to me, I respectfully dissent.
JUSTICE STEVENS, concurring in part and dissenting in part.
Under the Articles of Confederation, the Federal Government had
the 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 to
exercise legislative authority directly over individuals within the
States, even though that direct authority constituted a greater
intrusion on state sovereignty. Nothing in that history suggests
that the Federal Government may not also impose its will upon the
several States as it did under the Articles. The Constitution
enhanced, rather than diminished, the power of the Federal
Government.
211
The notion that Congress does not have the power to issue "a
simple command to state governments to implement legislation
enacted by Congress,"
ante, at 176, is incorrect and
unsound. There is no such limitation in the Constitution. The Tenth
Amendment 1 surely does not impose any limit on Congress' exercise
of the powers delegated to it by Article J.2 Nor does the structure
of the constitutional order or the values of federalism mandate
such a formal rule. To the contrary, the Federal Government directs
state governments in many realms. The Government regulates
state-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 either
draft soldiers itself or command the States to supply their quotas
of troops. I see no reason why Congress may not also command the
States to enforce federal water and air quality standards or
federal standards for the disposition of low-level radioactive
wastes.
The Constitution gives this Court the power to resolve
controversies between the States. Long before Congress
1 The Tenth Amendment provides: "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the
people."
2 In
United States v.
Darby, 312 U. S. 100 (1941), we
explained:
"The amendment states but a truism that all is retained which
has not been surrendered. There is nothing in the history of its
adoption to suggest that it was more than declaratory of the
relationship between the national and state governments as it had
been established by the Constitution before the amendment or that
its purpose was other than to allay fears that the new national
government might seek to exercise powers not granted, and that the
states 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 been
construed as not depriving the national government of authority to
resort to all means for the exercise of a granted power which are
appropriate and plainly adapted to the permitted end."
Id.,
at 124; see also
ante, at 155-157.
212
Opinion of STEVENS, J.
enacted pollution-control legislation, this Court crafted a body
of" 'interstate common law,'"
Illinois v.
City of
Milwaukee, 406 U.
S. 91, 106 (1972), to govern disputes between States involving
interstate waters. See
Arkansas v.
Oklahoma, 503 U. S. 91, 98-99
(1992). In such contexts, we have not hesitated to direct States to
undertake specific actions. For example, we have "impose[d] on
States an affirmative duty to take reasonable steps to conserve and
augment the water supply of an interstate stream."
Colorado
v.
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 State
that is polluting the waters of a downstream State to adopt
appropriate regulations to implement a federal statutory
command.
With respect to the problem presented by the cases at hand, if
litigation should develop between States that have joined a
compact, we would surely have the power to grant relief in the form
of specific enforcement of the take title provision.3 Indeed, even
if the statute had never been passed, if one State's radioactive
waste created a nuisance that harmed its neighbors, it seems clear
that we would have had the power
3 Even if § 2021e(d)(2)(C) is "invalidated" insofar as it
applies to the State of New York, it remains enforceable against
the 44 States that have joined interstate compacts approved by
Congress 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 of
the [Act] ... and only for so long as the [entities] established in
the 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 the
provisions of the Act, including the take title provision. These
compacts, the product of voluntary interstate cooperation,
unquestionably survive the "invalidation" of § 2021e(d)(2)(C) as it
applies to New York. Congress did not "direc[t]" the States to
enter into these compacts and the decision of each compacting State
to enter into a compact was not influenced by the existence of the
take title provision: Whether a State went its own way or joined a
compact, it was still subject to the take title provision.
213
to command the offending State to take remedial action. Cf.
Illinois v.
City of Milwaukee, supra. If this Court
has such authority, surely Congress has similar authority.
For these reasons, as well as those set forth by JUSTICE WHITE,
I respectfully dissent.
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