Annotation 2 - Article VI

Clause 2. Supremacy of the Constitution, Laws and Treaties


Marshall's Interpretation of the National Supremacy Clause

Although the Supreme Court had held, prior to Marshall's appointment to the Bench, that the supremacy clause rendered null and void a state constitutional or statutory provision which was inconsistent with a treaty executed by the Federal Government, 1 it was left for him to develop the full significance of the clause as applied to acts of Congress. By his vigorous opinions in McCulloch v. Maryland 2 and Gibbons v. Ogden, 3 he gave the principle a vitality which survived a century of vacillation under the doctrine of dual federalism. In the former case, he asserted broadly that ''the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared.'' 4 From this he concluded that a state tax upon notes issued by a branch of the Bank of the United States was void.

In Gibbons v. Ogden, the Court held that certain statutes of New York granting an exclusive right to use steam navigation on the waters of the State were null and void insofar as they applied to vessels licensed by the United States to engage in coastal trade. Said the Chief Justice: ''In argument, however, it has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of an act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State legislatures as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.'' 5  

Task of the Supreme Court Under the Clause: Preemption

In applying the supremacy clause to subjects which have been regulated by Congress, the primary task of the Court is to ascertain whether a challenged state law is compatible with the policy expressed in the federal statute. When Congress legislates with regard to a subject, the extent and nature of the legal consequences of the regulation are federal questions, the answers to which are to be derived from a consideration of the language and policy of the state. If Congress expressly provides for exclusive federal dominion or if it expressly provides for concurrent federal-state jurisdiction, the task of the Court is simplified, though, of course, there may still be doubtful areas in which interpretation will be necessary. Where Congress is silent, however, the Court must itself decide whether the effect of the federal legislation is to oust state jurisdiction. 6  

The Operation of the Supremacy Clause

When Congress legislates pursuant to its delegated powers, conflicting state law and policy must yield. 7 Although the preemptive effect of federal legislation is best known in areas governed by the commerce clause, the same effect is present, of course, whenever Congress legislates constitutionally. And the operation of the supremacy clause may be seen as well when the authority of Congress is not express but implied, not plenary but dependent upon state acceptance. The latter may be seen in a series of cases concerning the validity of state legislation enacted to bring the States within the various programs authorized by Congress pursuant to the Social Security Act. 8 State participation in the programs is voluntary, technically speaking, and no State is compelled to enact legislation comporting with the requirements of federal law. Once, however, a State is participating, its legislation, which is contrary to federal requirements, is void under the supremacy clause. 9  

Federal Immunity Laws and State Courts .--An example of the former circumstance is the operation of federal immunity acts 10 to preclude the use in state courts of incriminating statements and testimony given by a witness before a committee of Congress or a federal grand jury. 11 Because Congress in pursuance of its paramount authority to provide for the national defense, as complemented by the necessary and proper clause, is competent to compel testimony of persons which is needful for legislation, it is competent to obtain such testimony over a witness's self-incrimination claim by immunizing him from prosecution on evidence thus revealed not only in federal courts but in state courts as well. 12  

Priority of National Claims Over State Claims .--Anticipating his argument in McCulloch v. Maryland, 13 Chief Justice Marshall in 1805 upheld an act of 1792 asserting for the United States a priority of its claims over those of the States against a debtor in bankruptcy. 14 Consistent therewith, federal enactments providing that taxes due to the United States by an insolvent shall have priority in payment over taxes due by him to a State also have been sustained. 15 Similarly, the Federal Government was held entitled to prevail over a citizen enjoying a preference under state law as creditor of an enemy alien bank in the process of liquidation by state authorities. 16 A federal law providing that when a veteran dies in a federal hospital without a will or heirs his personal property shall vest in the United States as trustee for the General Post Fund was held to operate automatically without prior agreement of the veteran with the United States for such disposition and to take precedence over a state claim founded on its escheat law. 17  

Obligation of State Courts Under the Supremacy Clause

The Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and constitution. Their obligation ''is imperative upon the state judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States--'the supreme law of the land'.'' 18 State courts are bound then to give effect to federal law when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court. 19 While States need not specially create courts competent to hear federal claims or necessarily to give courts authority specially, it violates the supremacy clause for a state court to refuse to hear a category of federal claims when the court entertains state law actions of a similar nature. 20 The existence of inferior federal courts sitting in the States and exercising often concurrent jurisdiction of subjects has created problems with regard to the degree to which state courts are bound by their rulings. Though the Supreme Court has directed and encouraged the lower federal courts to create a corpus of federal common law, 21 it has not spoken to the effect of such lower court rulings on state courts.

Supremacy Clause Versus the Tenth Amendment

The logic of the supremacy clause would seem to require that the powers of Congress be determined by the fair reading of the express and implied grants contained in the Constitution itself, without reference to the powers of the States. For a century after Marshall's death, however, the Court proceeded on the theory that the Tenth Amendment had the effect of withdrawing various matters of internal police from the reach of power expressly committed to Congress. This point of view was originally put forward in New York City v. Miln, 22 which was first argued but not decided before Marshall's death. The Miln case involved a New York statute which required the captains of vessels entering New York Harbor with aliens aboard to make a report in writing to the Mayor of the City, giving certain prescribed information. It might have been distinguished from Gibbons v. Ogden on the ground that the statute involved in the earlier case conflicted with an act of Congress, whereas the Court found that no such conflict existed in this case. But the Court was unwilling to rest its decision on that distinction.

Speaking for the majority, Justice Barbour seized the opportunity to proclaim a new doctrine. ''But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive.'' 23 Justice Story, in dissent, stated that Marshall had heard the previous argument and reached the conclusion that the New York statute was unconstitutional. 24  

The conception of a ''complete, unqualified and exclusive'' police power residing in the States and limiting the powers of the National Government was endorsed by Chief Justice Taney ten years later in the License Cases. 25 In upholding state laws requiring licenses for the sale of alcoholic beverages, including those imported from other States or from foreign countries, he set up the Supreme Court as the final arbiter in drawing the line between the mutually exclusive, reciprocally limiting fields of power occupied by the national and state governments. 26  

Until recently, it appeared that in fact and in theory the Court had repudiated this doctrine, 27 but in National League of Cities v. Usery, 28 it revived part of this state police power limitation upon the exercise of delegated federal power. However, the decision was by a closely divided Court and subsequent interpretations closely cabined the development and then overruled the case.

Following the demise of the ''doctrine of dual federalism'' in the 1930s, the Court confronted the question whether Congress had the power to regulate state conduct and activities to the same extent, primarily under the commerce clause, as it did to regulate private conduct and activities to the exclusion of state law. 29 In United States v. California, 30 upholding the validity of the application of a federal safety law to a state-owned railroad being operated as a non- profit entity, the Court, speaking through Justice Stone, denied the existence of an implied limitation upon Congress' ''plenary power to regulate commerce'' when a state instrumentality was involved. ''The state can no more deny the power if its exercise has been authorized by Congress than can an individual.'' While the State in operating the railroad was acting as a sovereign and within the powers reserved to the States, the Court said, its exercise was ''in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution.'' 31 A series of cases followed in which the Court refused to construct any state immunity from regulation when Congress acted pursuant to a delegated power. 32 The culmination of this series had been thought to be Maryland v. Wirtz, 33 in which the Court upheld the constitutionality of applying the federal wage and hour law to nonprofessional employees of state-operated schools and hospitals. In an opinion by Justice Harlan, the Court saw a clear connection between working conditions in these institutions and interstate commerce. Labor conditions in schools and hospitals affect commerce; strikes and work stoppages involving such employees interrupt and burden the flow across state lines of goods purchased by state agencies and the wages paid have a substantial effect. The commerce clause being thus applicable, the Justice wrote, Congress was not constitutionally required to ''yield to state sovereignty in the performance of governmental functions. This argument simply is not tenable. There is no general 'doctrine implied in the Federal Constitution that ''the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other.''' . . . [I]t is clear that the Federal Government when acting within a delegated power, may override countervailing state interests whether these be described as 'governmental' or 'proprietary' in character. . . . [V]alid general regulations of commerce do not cease to be regulations of commerce because a State is involved. If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation.'' 34  

Wirtz was specifically reaffirmed in Fry v. United States, 35 in which the Court upheld the constitutionality of presidentially imposed wage and salary controls, pursuant to congressional statute, on all state governmental employees. In dissent, however, Justice Rehnquist propounded a doctrine which was to obtain majority approval in League of Cities. 36 In that opinion, he said for the Court: ''[T]here are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Con gress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.'' 37 The standard apparently, in judging between permissible and impermissible federal regulation, is whether there is federal interference with ''functions essential to separate and independent existence.'' 38 In the context of this case, state decisions with respect to the pay of their employees and the hours to be worked were essential aspects of their ''freedom to structure integral operations in areas of traditional governmental functions.'' 39 The line of cases, exemplified by United States v. California, was distinguished and preserved on the basis that the state activities there regulated were so unlike the traditional activities of a State that Congress could reach them; 40 Case v. Bowles was held distinguishable on the basis that Congress had acted pursuant to its war powers and to have rejected the power would have impaired national defense; 41 Fry was distinguished on the bases that it was emergency legislation tailored to combat a serious national emergency, the means were limited in time and effect, the freeze did not displace state discretion in structuring operations or force a restructuring, and, the federal action ''operated to reduce the pressure upon state budgets rather than increase them.'' 42 Wirtz was overruled; it permitted Congress to intrude into the conduct of integral and traditional state governmental functions and could not therefore stand. 43  

League of Cities did not prove to be much of a restriction upon congressional power in subsequent decisions. First, its principle was held not to reach to state regulation of private conduct that affects interstate commerce, even as to such matters as state jurisdiction over land within its borders. 44 Second, it was held not to immunize state conduct of a business operation, that is, proprietary activity not like ''traditional governmental activities.'' 45 Third, it was held not to preclude Congress from regulating the way States regulate private activities within the State, even though such state activity is certainly traditional governmental action, on the theory that because Congress could displace or preempt state regulation it may require the States to regulate in a certain way if they wish to continue to act in this field. 46 Fourth, it was held not to limit Congress when it acts in an emergency or pursuant to its war powers, so that Congress may indeed reach even traditional governmental activity. 47 Fifth, it was held not to apply at all to Congress' enforcement powers under the Thirteenth, Fourteenth, and Fifteenth Amendments. 48 Sixth, it apparently was to have no application to the exercise of Congress' spending power with conditions attached. 49 Seventh, not because of the way the Court framed the statement of its doctrinal position, which is absolutist, but because of the way it accommodated precedent and because of Justice Blackmun's concurrence, it was always open to interpretation that Congress was enabled to reach traditional governmental activities not involving employer-employee relations or is enabled to reach even these relations if the effect is ''to reduce the pressures upon state budgets rather than increase them.'' 50 In his concurrence, Justice Blackmun suggested his lack of agreement with ''certain possible implications'' of the opinion and recast it as a ''balancing approach'' which ''does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential.'' 51 Indeed, Justice Blackmun's deviation from League of Cities in the subsequent cases usually made the difference in the majority. dispute.

The Court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Auth., 52 and seemingly returned to the conception of federal supremacy embodied in Wirtz and Fry. For the most part, the Court indicated, States must seek protection from the impact of federal regulation in the political processes, and not in any limitations imposed on the commerce power or found in the Tenth Amendment. Justice Blackmun's opinion for the Court in Garcia concluded that the National League of Cities test for ''integral operations in areas of traditional governmental functions'' had proven ''both impractical and doctrinally barren.'' 53 State autonomy is both limited and protected by the terms of the Constitution itself, hence-- ordinarily, at least--exercise of Congress' enumerated powers is not to be limited by ''a priori definitions of state sovereignty.'' 54 States retain a significant amount of sovereign authority ''only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.'' 55 There are direct limitations in Art. I, Sec. 10, and ''Section 8 . . . works an equally sharp contraction of state sovereignty by authorizing Congress to exercise a wide range of legislative powers and (in conjunction with the supremacy clause of Article VI) to displace contrary state legislation.'' 56 On the other hand, the principal restraints on congressional exercise of the commerce power are to be found not in the Tenth Amendment, in the commerce clause itself, or in ''judicially created limitations on federal power,'' but in the structure of the Federal Government and in the political processes. 57 ''[T]he 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.'' 58 While continuing to recognize that ''Congress' authority under the Commerce Clause must reflect [the] position . . . that the States occupy a special and specific position in our constitutional system,'' the Court held that application of Fair Labor Standards Act minimum wage and overtime provisions to state employment does not require identification of these ''affirmative limits.'' 59 Thus, arguably, the Court has not totally abandoned the National League of Cities premise that there are limits on the extent to which federal regulation may burden States as States. Rather, it has stipulated that any such limits on exercise of federal power must be premised on a failure of the political processes to protect state interests, and ''must be tailored to compensate for [such] failings . . . rather than to dictate a 'sacred province of state autonomy.''' 60  

Further indication of what must be alleged in order to establish affirmative limits to commerce power regulation was provided in South Carolina v. Baker. 61 The Court expansively interpreted Garcia as meaning that there must be an allegation of ''some extraordinary defects in the national political process'' before the Court will intervene. A claim that Congress acted on incomplete information will not suffice, the Court noting that South Carolina had ''not even alleged that it was deprived of any right to participate in the national political process or that it was singled out in a way that left it politically isolated and powerless.'' 62 Thus, the general rule is that ''limits on Congress' authority to regulate state activities . . . are structural, not substantive--i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity.'' 63  

Dissenting in Garcia, Justice Rehnquist predicted that the doctrine propounded by the dissenters and by those Justices in National League of Cities ''will . . . in time again command the support of a majority of the Court.'' 64 As the membership of the Court changed, it appeared that the prediction was proving true. 65 Confronted with the opportunity in New York v. United States, 66 to re-examine Garcia, the Court instead distinguished it, 67 striking down a federal law on the basis that Congress could not ''commandeer'' the legislative and administrative processes of state government to compel the administration of federal programs. 68 The line of analysis pursued by the Court makes clear, however, the result when a Garcia kind of federal law is reviewed.

That is, because the dispute involved the division of authority between federal and state governments, Justice O'Connor wrote for the Court, one could inquire whether Congress acted under a delegated power or one could ask whether Congress had invaded a state province protected by the Tenth Amendment. But, said the Justice, ''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.'' 69  

Powers delegated to the Nation, therefore, are subject to limitations that reserve power to the States. This limitation is not found in the text of the Tenth Amendment, which is, the Court stated, ''but a truism,'' 70 but is a direct constraint on Article I powers when an incident of state sovereignty is invaded. 71 The ''take title'' provision was such an invasion. Both the Federal Government and the States owe political accountability to the people. When Congress encourages States to adopt and administer a federally-prescribed program, both governments maintain their accountability for their decisions. When Congress compels the States to act, state officials will bear the brunt of accountability that properly belongs at the national level. 72 The ''take title'' provision, because it presented the States with ''an unavoidable command'', transformed state governments into ''regional offices'' or ''administrative agencies'' of the Federal Government, impermissibly undermined the accountability owing the people and was void. 73 Whether viewed as lying outside Congress' enumerated powers or as infringing 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.'' 74  

Federal laws of general applicability, therefore, are surely subject to examination under the New York test rather than under the Garcia structural standard. The exercise of Congress' commerce powers will likely be reviewed under a level of close scrutiny in the foreseeable future.


[Footnote 1] Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

[Footnote 2]   17 U.S. (4 Wheat.) 316 (1819).

[Footnote 3]   22 U.S. (9 Wheat.) 1 (1824).

[Footnote 4]   17 U.S. (4 Wheat.) 436 (1819).

[Footnote 5] 9 Wheat. (22 U.S.), 210-211 (1824). See the Court's discussion of Gibbons in Douglas v. Seacoast Products, 431 U.S. 265, 274 -279 (1977).

[Footnote 6] Treatment of preemption principles and standards is set out under the commerce clause, which is the greatest source of preemptive authority.

[Footnote 7] Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210 -211 (1824). See, e.g., Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608 (1992); Morales v. TWA, 112 S.Ct. 2031 (1992); Maryland v. Lousiana, 451 U.S. 725, 746 (1981); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).

[Footnote 8] By the Social Security Act of 1935, 49 Stat. 620, 42 U.S.C. Sec. 301 et seq., Congress established a series of programs operative in those States which joined the system and enacted the requisite complying legislation. Although participation is voluntary, the federal tax program underlying in effect induces state participation. See Steward Machine Co. v. Davis, 301 U.S. 548, 585 -598 (1937).

[Footnote 9] On the operation of federal spending programs upon state laws, see South Dakota v. Dole, 483 U.S. 203 (1987) (under highway funding programs). On the preemptive effect of federal spending laws, see Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256 (1985). An early example of States being required to conform their laws to the federal standards is King v. Smith, 392 U.S. 309 (1968). Private parties may compel state acquiescence in federal standards to which they have agreed by participation in the programs through suits under a federal civil rights law (42 U.S.C. Sec. 1983). Maine v. Thiboutot, 448 U.S. 1 (1980). The Court has imposed some federalism constraints in this area by imposing a ''clear statement'' rule on Congress when it seeks to impose new conditions on States. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 11 , 17-18 (1981).

[Footnote 10] Which operate to compel witnesses to testify even over self- incrimination claims by giving them an equivalent immunity.

[Footnote 11] Adams v. Maryland, 347 U.S. 179 (1954).

[Footnote 12] Ullmann v. United States, 350 U.S. 422, 434 -436 (1956). See also Reina v. United States, 364 U.S. 507, 510 (1960).

[Footnote 13]   17 U.S. (4 Wheat.) 316 (1819).

[Footnote 14] United States v. Fisher, 6 U.S. (2 Cr.) 358 (1805).

[Footnote 15] Spokane County v. United States, 279 U.S. 80, 87 (1929). A state requirement that notice of a federal tax lien be filed in conformity with state law in a state office in order to be accorded priority was held to be controlling only insofar as Congress by law had made it so. Remedies for collection of federal taxes are independent of legislative action of the States. United States v. Union Central Life Ins. Co., 368 U.S. 291 (1961). See also United States v. Buffalo Savings Bank, 371 U.S. 228 (1963) (State may not avoid priority rules of a federal tax lien by providing that the discharge of state tax liens are to be part of the expenses of a mortgage foreclosure sale); United States v. Pioneer American Ins. Co., 374 U.S. 84 (1963) (Matter of federal law whether a lien created by state law has acquired sufficient substance and has become so perfected as to defeat a later-arising or later-filed federal tax lien).

[Footnote 16] Brownell v. Singer, 347 U.S. 403 (1954).

[Footnote 17] United States v. Oregon, 366 U.S. 643 (1961).

[Footnote 18] Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 335 (1816). State courts have both the power and the duty to enforce obligations arising under federal law, unless Congress gives the federal courts exclusive jurisdiction. Claflin v. Houseman, 93 U.S. 130 (1876); Second Employers' Liability Cases, 223 U.S. 1 (1912); Testa v. Katt, 330 U.S. 386 (1947).

[Footnote 19] Cooper v. Aaron, 358 U.S. 1 (1958).

[Footnote 20] Howlett v. Rose, 496 U.S. 356 (1990); Felder v. Casey, 487 U.S. 131 (1988).

[Footnote 21] Clearfield Trust Co. v. United States, 318 U.S. 363 (1943); Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957); Illinois v. City of Milwaukee, 406 U.S. 91 (1972).

[Footnote 22]   36 U.S. (11 Pet.) 102 (1837).

[Footnote 23] Id., 139.

[Footnote 24] Id., 161.

[Footnote 25]   46 U.S. (5 How.) 504 (1847).

[Footnote 26] Id., 573-574.

[Footnote 27] Representative early cases include NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937); United States v. Darby, 312 U.S. 100 (1941). Among the cases incompatible with the theory was Maryland v. Wirtz, 392 U.S. 183 (1968).

[Footnote 28]   426 U.S. 833 (1976).

[Footnote 29] On the doctrine of ''dual federalism,'' see the commentary by the originator of the phrase, Professor Corwin. E. Corwin, The Twilight of the Supreme Court--A History of Our Constitutional Theory (Yale: 1934), 10-51; The Commerce Power Versus States Rights (Princeton: 1936), 115-172; A Constitution of Powers in a Secular State (Charlottesville: 1951), 1-28.

[Footnote 30]   297 U.S. 175 (1936).

[Footnote 31] Id., 183-185.

[Footnote 32] California v. United States, 320 U.S. 577 (1944) (federal regulation of shipping terminal facilities owned by State); California v. Taylor, 353 U.S. 553 (1957) (Railway Labor Act applies on state-owned railroad); Case v. Bowles, 327 U.S. 92 (1946); Hubler v. Twin Falls County, 327 U.S. 103 (1946) (federal wartime price regulations applied to state transactions; Congress' power effectively to wage war); Board of Trustees v. United States, 289 U.S. 48 (1933) (State university required to pay federal customs duties on imported educational equipment); Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508 (1941) (federal condemnation of state lands for flood control project); Sanitary District v. United States, 206 U.S. 405 (1925) (prohibition of State from diverting water from Great Lakes).

[Footnote 33]   392 U.S. 183 (1968). Justices Douglas and Stewart dissented. Id., 201.

[Footnote 34] Id., 195, 196-197.

[Footnote 35]   421 U.S. 542 (1975).

[Footnote 36] Id. 549. Essentially, the Justice was required to establish an affirmative constitutional barrier to congressional action. Id, 552- 553. That is, if one asserts only the absence of congressional authority, one's chances of success are dim because of the breadth of the commerce power. But when he asserts that, say, the First or Fifth Amendment bars congressional action concededly within its commerce power, one interposes an affirmative constitutional defense that has a chance of success. It was the Justice's view that the State was ''asserting an affirmative constitutional right, inherent in its capacity as a State, to be free from such congressionally asserted authority.'' Id., 553. But whence the affirmative barrier? ''[I]t is not the Tenth Amendment by its terms. . . .'' Id., 557 (emphasis supplied). Rather, the Amendment was an example of the Framers' understanding that the sovereignty of the States imposed an implied affirmative barrier to the assertion of otherwise valid congressional powers. Id., 557-559. But the difficulty with this construction is that the equivalence sought to be established by Justice Rehnquist lies not between an individual asserting a constitutional limit on delegated powers and a State asserting the same thing but is rather between an individual asserting a lack of authority and a State asserting a lack of authority; this equivalence is evident on the face of the Tenth Amendment which states that the powers not delegated to the United States ''are reserved to the States respectively, or to the people.'' (emphasis supplied). The States are thereby accorded no greater interest in restraining the exercise of nondelegated power than are the people. See Massachusetts v. Mellon, 262 U.S. 447 (1823).

[Footnote 37] National League of Cities v. Usery, 426 U.S. 833, 845 (1976).

[Footnote 38] Ibid.

[Footnote 39] Id., 852.

[Footnote 40] Id., 854.

[Footnote 41] Id., 854 n. 18.

[Footnote 42] Id., 852-853.

[Footnote 43] Id., 853-855.

[Footnote 44] Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981).

[Footnote 45] United Transp. Union v. Long Island Rail Road Co., 455 U.S. 678 (1982).

[Footnote 46] FERC v. Mississippi, 456 U.S. 742 (1982).

[Footnote 47] National League of Cities v. Usery, 426 U.S. 833, 854 n. 18 (1976).

[Footnote 48] Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446 U.S. 156, 178 -180 (1980).

[Footnote 49] In Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 n. 13 (1981), the Court suggested rather ambiguously that League of Cities may restrict the federal spending power, citing its reservation of the cases in League of Cities, 426 U.S. 852 n. 17, but citing also spending clause cases indicating a rational basis standard of review of conditioned spending. Earlier, the Court had summarily affirmed a decision holding that the spending power was not affected by the case. North Carolina ex rel. Morrow v. Califano, 445 F.Supp. 532 (E.D.N.C. 1977) (three-judge court), affd. 435 U.S. 962 (1978). No hint of such a limitation is contained in more recent decisions (to be sure, in the aftermath of League of Cities' demise). New York v. United States, 112 S.Ct. 2408, 2423, 2426, 2433 (1992); South Dakota v. Dole, 483 U.S. 203, 210 -212 (1987).

[Footnote 50] National League of Cities v. Usery, 426 U.S. 833, 846 -851 (1976). The quotation in the text is at id., 853 (one of the elements distinguishing the case from Fry ).

[Footnote 51] Id., 856.

[Footnote 52]   469 U.S. 528 (1985). The issue was again decided by a 5 to 4 vote, Justice Blackmun's qualified acceptance of the National League of Cities approach having changed to complete rejection. Justice Blackmun's opinion of the Court was joined by Justices Brennan, White, Marshall, and Stevens. Writing in dissent were Justices Powell (joined by Chief Justice Burger and by Justices Rehnquist and O'Connor), O'Connor (joined by Justices Powell and Rehnquist), and Rehnquist.

[Footnote 53] Id., 557.

[Footnote 54] Id., 548.

[Footnote 55] Id., 549.

[Footnote 56] Id., 548.

[Footnote 57] ''Apart from the limitation on federal authority inherent in the delegated nature of Congress' Article I powers, the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself.'' Id., 550. The Court cited as prime examples the role of states in selecting the President, and the equal representation of states in the Senate. Id., 551.

[Footnote 58] Id., 554.

[Footnote 59] Id., 556.

[Footnote 60] Id., 554.

[Footnote 61]   485 U.S. 505 (1988).

[Footnote 62] Id., 512-513.

[Footnote 63] Id., 512.

[Footnote 64] Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 579 -580 (1985).

[Footnote 65] The shift was pronounced in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which the Court, cognizant of the constraints of Garcia, chose to apply a ''plain statement'' rule to construction of a statute seen to be intruding into the heart of state autonomy. Id., 463. To do otherwise, said Justice O'Connor, was to confront ''a potential constitutional problem'' under the Tenth Amendment and the guarantee clause of Article IV, Sec. 4. Id., 463-464.

[Footnote 66] 112 S.Ct. 2408 (1992).

[Footnote 67] The line of cases exemplified by Garcia was said to concern the authority of Congress to subject state governments to generally applicable laws, those covering private concerns as well as the States, necessitating no revisiting of those cases. Id., 2420.

[Footnote 68] Struck down was a provision of law providing for the disposal of radioactive wastes generated in the United States by government and industry. Placing various responsibilities on the States, the provision sought to compel performance by requiring that any State that failed to provide for the permanent disposal of wastes generated within its borders must take title to, take possession of, and assume liability for the wastes, id., 2414-2417, 2427-2429, obviously a considerable burden.

[Footnote 69] Id., 2417.

[Footnote 70] Id., 2418 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)).

[Footnote 71] Ibid.

[Footnote 72] Id., 2424.

[Footnote 73] Id., 2427-2429, 2434-2435.

[Footnote 74] Id., 2429.

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