Federalism

Constraints on Congressional Power

New York v. United States (1992)

505 U.S. 144 (1992)

Decision: Affirmed in part and reversed in part
Vote: 6-3
Majority: O’Connor, joined by Rehnquist, Scalia, Kennedy, Thomas, as well as White, Blackmun, and Stevens (parts III-A and III-B only)
Concur/dissent: White, joined by Blackmun and Stevens
Concur/dissent: Stevens

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 constitutional law. 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 … 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.

We live in a world full of low level radioactive waste … The waste must be isolated from humans for long periods of time, often for hundreds of years. Millions of cubic feet of low level radioactive waste must be disposed of each year …

As a result, since 1979 only three disposal sites— those 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. …

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 …

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 … Congress declared a federal policy of holding each State “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 … ” 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 … 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 … The result was the legislation challenged here, the Low-Level Radioactive Waste Policy Amendments Act of 1985 …

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 … [T]he three States in which the disposal sites are located are permitted to exact a graduated surcharge for waste arriving from outside the regional compact … After the 7-year transition period expires, approved regional compacts may exclude radioactive waste generated outside the region.

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.

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 … The Secretary then makes payments from this account to each State that has complied with a series of deadlines … 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.

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 … 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.

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 of the waste as soon after January 1, 1996, as the generator or owner notifies the State that the waste is available for shipment … ”

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 …

[Petitioners] 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 … 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 …

[T]he 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 a case … 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 …

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 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 … ” Interstate commerce was an established feature of life in the late 18th century … 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 …

Second, the Constitution authorizes Congress “to pay the Debts and provide for the … general Welfare of the United States … ” While the spending power is “subject to several general restrictions articulated in our cases,” South Dakota v. Dole (1987), 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 …

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 … ” We have observed that the Supremacy Clause gives the Federal Government “a decided advantage in th[e] delicate balance” the Constitution strikes between state and federal power. Gregory v. Ashcroft (1991).

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 … [W]e 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.

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 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 … 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 …

[T]he 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 … ”

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 …

In the end, the Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals rather than over States …

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 … 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.

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 …

… [B]y 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 … 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. 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 …

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.” 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 …

The Act could plausibly be understood either as a mandate to regulate or as a series of incentives. Under petitioners’ view … the Act would clearly “commandee[r] the legislative processes of the States … ” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. (1981) … 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 … 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, (1988). This rule of statutory construction pushes us away from petitioners’ understanding of § 2021c (a)(1)(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.

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 …

The second step … 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.

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 [here] …

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. 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 federal standards or having state law pre-empted by federal regulation.

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 …

The take title provision is of a different character … In this provision, Congress has crossed the line distinguishing encouragement from coercion.

The take title provision offers state governments a “choice” of either accepting ownership of waste or regulating according to the instructions of Congress … 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 … 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 pursuant 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 … A choice between two unconstitutionally coercive regulatory techniques is no choice at all …

Respondents emphasize the latitude given to the States to implement Congress’ plan.  This line of reasoning, however, only underscores the critical alternative a 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 …

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 …

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, 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.

Affirmed in part and reversed in part.

It is so ordered.


Printz v. United States (1997)

521 U.S. 898 (1997)

Decision: reversed
Vote: 5-4
Majority: Scalia, joined by Rehnquist, O’Connor, Kennedy, and Thomas
Concurrence: O’Connor
Concurrence: Thomas
Dissent: Stevens, joined by Souter, Ginsburg, and Breyer
Dissent: Souter
Dissent: Breyer, joined by Stevens

Justice SCALIA delivered the opinion of the Court.

The question presented in these cases is whether certain interim provisions of the Brady Handgun Violence Prevention Act, commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.

The Gun Control Act of 1968 (GCA), establishes a detailed federal scheme governing the distribution of firearms …

In 1993, Congress amended the GCA by enacting the Brady Act. The Act requires the Attorney General to establish a national instant background-check system by November 30, 1998 …

[Under the Act] a dealer may sell a handgun immediately if the purchaser possesses a state handgun permit issued after a background check, or if state law provides for an instant background check. In States that have not rendered one of these alternatives applicable to all gun purchasers, CLEOs [Chief Law Enforcement Officers] are required to perform certain duties. When a CLEO receives the required notice of a proposed transfer from the firearms dealer, the CLEO must “make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law … The Act does not require the CLEO to take any particular action if he determines that a pending transaction would be unlawful … If, however, the CLEO notifies a gun dealer that a prospective purchaser is ineligible to receive a handgun, he must, upon request, provide the would-be purchaser with a written statement of the reasons for that determination … Under a separate provision of the GCA, any person who “knowingly violates [the section of the GCA amended by the Brady Act] shall be fined under this title, imprisoned for not more than 1 year, or both.”

Petitioners Jay Printz and Richard Mack, the CLEOs for Ravalli County, Montana, and Graham County, Arizona, respectively, filed separate actions challenging the constitutionality of the Brady Act’s interim provisions. In each case, the District Court held that the provision requiring CLEOs to perform background checks was unconstitutional, but concluded that that provision was severable from the remainder of the Act, effectively leaving a voluntary background-check system in place … A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding none of the Brady Act’s interim provisions to be unconstitutional … We granted certiorari.

From the description set forth above, it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme … While the CLEOs are subjected to no federal requirement that they prevent the sales determined to be unlawful … they are empowered to grant, in effect, waivers of the federally prescribed 5–day waiting period for handgun purchases by notifying the gun dealers that they have no reason to believe the transactions would be illegal.

Petitioners here object to being pressed into federal service, and contend that congressional action compelling state officers to execute federal laws is unconstitutional. Because there is no constitutional text speaking to this precise question, the answer to the CLEOs’ challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court …

Petitioners contend that compelled enlistment of state executive officers for the administration of federal programs is, until very recent years at least, unprecedented. The Government contends, to the contrary, that “the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws,” Brief for the United States …

The Government observes that statutes enacted by the first Congresses required state courts to record applications for citizenship … [and] to transmit abstracts of citizenship applications and other naturalization records to the Secretary of State …

These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power … It is understandable why courts should have been viewed distinctively in this regard; unlike legislatures and executives, they applied the law of other sovereigns all the time. The principle underlying so-called “transitory” causes of action was that laws which operated elsewhere created obligations in justice that courts of the forum State would enforce …

[W]e do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service. Indeed, it can be argued that the numerousness of these statutes, contrasted with the utter lack of statutes imposing obligations on the States’ executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power …

Not only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the Federal Government may command the States’ executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption … [T]he day before its proposal of the Bill of Rights … the First Congress enacted a law aimed at obtaining state assistance of the most rudimentary and necessary sort for the enforcement of the new Government’s laws: the holding of federal prisoners in state jails at federal expense. Significantly, the law issued not a command to the States’ executive, but a recommendation to their legislatures …

In addition to early legislation, the Government also appeals to other sources we have usually regarded as indicative of the original understanding of the Constitution. It points to portions of The Federalist … “Publius” responded that Congress will probably “make use of the State officers and State regulations, for collecting” federal taxes, The Federalist No. 36, p. 221 (C. Rossiter ed. 1961) (A. Hamilton) (hereinafter The Federalist), and predicted that “the eventual collection [of internal revenue] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States,” id., No. 45, at 292 (J. Madison). But none of these statements necessarily implies-what is the critical point here-that Congress could impose these responsibilities without the consent of the States …

It is most implausible that the person who labored for that example of state executive officers’ assisting the Federal Government believed, but neglected to mention, that they had a responsibility to execute federal laws. If it was indeed Hamilton’s view that the Federal Government could direct the officers of the States, that view has no clear support in Madison’s writings, or as far as we are aware, in text, history, or early commentary elsewhere …

To complete the historical record, we must note that there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years. The Government points to the Act of August 3, 1882 … which enlisted state officials “to take charge of the local affairs of immigration in the ports within such State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need of public aid”; to inspect arriving immigrants and exclude any person found to be a “convict, lunatic, idiot,” or indigent; and to send convicts back to their country of origin “without compensation.” The statute did not, however, mandate those duties, but merely empowered the Secretary of the Treasury “to enter into contracts with such State … officers as may be designated for that purpose by the governor of any State.” (Emphasis added.)

The constitutional practice we have examined above tends to negate the existence of the congressional power asserted here, but is not conclusive. We turn next to consideration of the structure of the Constitution, to see if we can discern among its “essential postulate[s],” Principality of Monaco v. Mississippi, (1934), a principle that controls the present cases …

It is incontestible that the Constitution established a system of “dual sovereignty.” Gregory v. Ashcroft (1991). Although the States surrendered many of their powers to the new Federal Government, they retained “a residuary and inviolable sovereignty,” The Federalist No. 39, at 245 (J. Madison) … Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, § 8, which implication was rendered express by the Tenth Amendment’s assertion 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 Framers’ experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict … [T]he Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people …

This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one 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. Ashcroft (1991) …

We have thus far discussed the effect that federal control of state officers would have upon the first element of the “double security” alluded to by Madison: the division of power between State and Federal Governments. It would also have an effect upon the second element: the separation and equilibration of powers between the three branches of the Federal Government itself. The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed,” personally and through officers whom he appoints … The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control … The insistence of the Framers upon unity in the Federal Executive—to ensure both vigor and accountability—is well known … That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws …

The Government contends that … the Brady Act does not require state legislative or executive officials to make policy, but instead issues a final directive to state CLEOs. It is permissible, the Government asserts, for Congress to command state or local officials to assist in the implementation of federal law so long as “Congress itself devises a clear legislative solution that regulates private conduct” and requires state or local officers to provide only “limited, non-policymaking help in enforcing that law.” “[T]he constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities.” Brief for the United States.

The Government’s distinction between “making” law and merely “enforcing” it, between “policymaking” and mere “implementation,” is an interesting one. It is perhaps not meant to be the same as, but it is surely reminiscent of, the line that separates proper congressional conferral of Executive power from unconstitutional delegation of legislative authority for federal separation-of-powers purposes … This Court has not been notably successful in describing the latter line; indeed, some think we have abandoned the effort to do so … We are doubtful that the new line the Government proposes would be any more distinct. Executive action that has utterly no policymaking component is rare, particularly at an executive level as high as a jurisdiction’s chief law enforcement officer. Is it really true that there is no policymaking involved in deciding, for example, what “reasonable efforts” shall be expended to conduct a background check? … It is quite impossible, in short, to draw the Government’s proposed line at “no policymaking,” and we would have to fall back upon a line of “not too much policymaking.” How much is too much is not likely to be answered precisely; and an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one.

Even assuming, moreover, that the Brady Act leaves no “policymaking” discretion with the States, we fail to see how that improves rather than worsens the intrusion upon state sovereignty. Preservation of the States as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields … by “reduc[ing] [them] to puppets of a ventriloquist Congress,” Brown v. EPA (1977). It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority …

By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for “solving” problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects … Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected …

We adhere to that principle today, and conclude categorically, as we concluded categorically in New York v. US (1992): “The Federal Government may not compel the States to enact or administer a federal regulatory program.” The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule …

There is involved in this Brady Act conundrum a severability question, which the parties have briefed and argued: whether firearms dealers in the jurisdictions at issue here, and in other jurisdictions, remain obliged to forward to the CLEO (even if he will not accept it) the requisite notice of the contents (and a copy) of the Brady Form, and to wait five business days before consummating the sale. These are important questions, but we have no business answering them in these cases. These provisions burden only firearms dealers and purchasers, and no plaintiff in either of those categories is before us here. We decline to speculate regarding the rights and obligations of parties not before the Court.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.

It is so ordered.

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens. This conclusion is firmly supported by the text of the Constitution, the early history of the Nation, decisions of this Court, and a correct understanding of the basic structure of the Federal Government.

These cases do not implicate the more difficult questions associated with congressional coercion of state legislatures addressed in New York v. United States, (1992). Nor need we consider the wisdom of relying on local officials rather than federal agents to carry out aspects of a federal program, or even the question whether such officials may be required to perform a federal function on a permanent basis. The question is whether Congress, acting on behalf of the people of the entire Nation, may require local law enforcement officers to perform certain duties during the interim needed for the development of a federal gun control program. It is remarkably similar to the question, heavily debated by the Framers of the Constitution, whether the Congress could require state agents to collect federal taxes. Or the question whether Congress could impress state judges into federal service to entertain and decide cases that they would prefer to ignore.

Indeed, since the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond. If the Constitution empowers Congress and the President to make an appropriate response, is there anything in the Tenth Amendment, “in historical understanding and practice, in the structure of the Constitution, [or] in the jurisprudence of this Court,” ante, at 4, that forbids the enlistment of state officers to make that response effective? More narrowly, what basis is there in any of those sources for concluding that it is the Members of this Court, rather than the elected representatives of the people, who should determine whether the Constitution contains the unwritten rule that the Court announces today?

Perhaps today’s majority would suggest that no such emergency is presented by the facts of these cases. But such a suggestion is itself an expression of a policy judgment. And Congress’ view of the matter is quite different from that implied by the Court today.

The Brady Act was passed in response to what Congress described as an “epidemic of gun violence.” H. R. Rep. No. 103-344, p. 8 (1993) …

The text of the Constitution provides a sufficient basis for a correct disposition of this case.

Article I, §8, grants the Congress the power to regulate commerce among the States. Putting to one side the revisionist views expressed by Justice Thomas in his concurring opinion in United States v. Lopez, (1995), there can be no question that that provision adequately supports the regulation of commerce in handguns effected by the Brady Act. Moreover, the additional grant of authority in that section of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” is surely adequate to support the temporary enlistment of local police officers in the process of identifying persons who should not be entrusted with the possession of handguns. In short, the affirmative delegation of power in Article I provides ample authority for the congressional enactment …

There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United States that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I …

Indeed, the historical materials strongly suggest that the Founders intended to enhance the capacity of the federal government by empowering it–as a part of the new authority to make demands directly on individual citizens–to act through local officials. Hamilton made clear that the new Constitution, “by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws.” The Federalist No. 27 …

The Court’s response to this powerful historical evidence is weak. The majority suggests that “none of these statements necessarily implies … Congress could impose these responsibilities without the consent of the States.” Ante, at 10-11 (emphasis omitted). No fair reading of these materials can justify such an interpretation …

This point is made especially clear in Hamilton’s statement that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.” Ibid. (second emphasis added). It is hard to imagine a more unequivocal statement that state judicial and executive branch officials may be required to implement federal law where the National Government acts within the scope of its affirmative powers …

Bereft of support in the history of the founding, the Court rests its conclusion on the claim that there is little evidence the National Government actually exercised such a power in the early years of the Republic …

More importantly, the fact that Congress did elect to rely on state judges and the clerks of state courts to perform a variety of executive functions is surely evidence of a contemporary understanding that their status as state officials did not immunize them from federal service. The majority’s description of these early statutes is both incomplete and at times misleading … The Court assumes that the imposition of such essentially executive duties on state judges and their clerks sheds no light on the question whether executive officials might have an immunity from federal obligations …

We are far truer to the historical record by applying a functional approach in assessing the role played by these early state officials. The use of state judges and their clerks to perform executive functions was, in historical context, hardly unusual …

… the Court’s ruling is strikingly lacking in affirmative support. Absent even a modicum of textual foundation for its judicially crafted constitutional rule, there should be a presumption that if the Framers had actually intended such a rule, at least one of them would have mentioned it.

The Court’s “structural” arguments are not sufficient to rebut that presumption. The fact that the Framers intended to preserve the sovereignty of the several States simply does not speak to the question whether individual state employees may be required to perform federal obligations …

Perversely, the majority’s rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of State’s rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur, in part as a result of the National Government’s ability to rely on the magistracy of the states …

Nor is there force to the assumption undergirding the Court’s entire opinion that if this trivial burden on state sovereignty is permissible, the entire structure of federalism will soon collapse …

Hence, the Court’s textual argument is quite misguided. The majority focuses on the Clause’s specific attention to the point that “Judges in every State shall bebound.” Ibid. That language commands state judges to “apply federal law” in cases that they entertain, but it is not the source of their duty to accept jurisdiction of federal claims that they would prefer to ignore. Our opinions in Testa, and earlier the Second Employers’ Liability Cases, rested generally on the language of the Supremacy Clause, without any specific focus on the reference to judges …

The provision of the Brady Act that crosses the Court’s newly defined constitutional threshold is more comparable to a statute requiring local police officers to report the identity of missing children to the CrimeControl Center of the Department of Justice than to an offensive federal command to a sovereign state. If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power.

Accordingly, I respectfully dissent.


Nevada State HR v. Hibbs (2003)

538 U.S. 721 (2003)

Decision: Affirmed
Vote: 5-4
Majority: Rehnquist, joined by O’Connor, Souter, Ginsburg, and Breyer
Concurrence: Souter, joined by Ginsburg and Breyer
Concurrence: Stevens
Dissent: Scalia
Dissent: Kennedy, joined by Scalia and Thomas

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eligible employees to take up to 12 work weeks of unpaid leave annually for any of several reasons, including the onset of a “serious health condition” in an employee’s spouse, child, or parent. The Act creates a private right of action to seek both equitable relief and money damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction,” should that employer “interfere with, restrain, or deny the exercise of” FMLA rights. We hold that employees of the State of Nevada may recover money damages in the event of the State’s failure to comply with the family-care provision of the Act …

Respondent William Hibbs (hereinafter respondent) worked for the Department’s Welfare Division. In April and May 1997, he sought leave under the FMLA to care for his ailing wife, who was recovering from a car accident and neck surgery. The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997. Respondent did so until August 5, 1997, after which he did not return to work. In October 1997, the Department informed respondent that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12, 1997. Respondent failed to do so and was terminated …

We granted certiorari to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court for violation of [the Act] …

For over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States …

Congress may, however, abrogate such immunity in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment … The clarity of Congress’ intent here is not fairly debatable. The Act enables employees to seek damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction … ” We held in Kimel  [v. Florida Bd. Of Regents (2000)] that, by using identical language in the Age Discrimination in Employment Act of 1967 (ADEA) … Congress satisfied the clear statement rule of Dellmuth [v. Muth (1989)]. This case turns, then, on whether Congress acted within its constitutional authority when it sought to abrogate the States’ immunity for purposes of the FMLA’s family-leave provision …

Two provisions of the Fourteenth Amendment are relevant here: Section 5 grants Congress the power “to enforce” the substantive guarantees of §1-among them, equal protection of the laws-by enacting “appropriate legislation.” Congress may, in the exercise of its §5 power, do more than simply proscribe conduct that we have held unconstitutional. ” ‘Congress’ power “to enforce” the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.'” Kimel

The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.[1] We have held that statutory classifications that distinguish between males and females are subject to heightened scrutiny. Craig v. Boren, (1976). For a gender-based classification to withstand such scrutiny, it must “serv[e] important governmental objectives,” and “the discriminatory means employed [must be] substantially related to the achievement of those objectives … ” We now inquire whether Congress had evidence of a pattern of constitutional violations on the part of the States in this area.

The history of the many state laws limiting women’s employment opportunities is chronicled in–and, until relatively recently, was sanctioned by–this Court’s own opinions … Until our decision in Reed v. Reed, (1971), “it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ “-such as the above beliefs-“could be conceived for the discrimination.” U.S. v. Virginia (1996) …

Congress responded to this history of discrimination by abrogating States’ sovereign immunity in Title VII of the Civil Rights Act of 1964 … and we sustained this abrogation in Fitzpatrick, [v. Bitzer (1976)]. But state gender discrimination did not cease. “[I]t can hardly be doubted that … women still face pervasive, although at times more subtle, discrimination … in the job market.” Frontiero v. Richardson, (1973). According to evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States’ gender discrimination in this area. [U.S. v] Virginia [(1996)]. The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress’ passage of prophylactic §5 legislation.

As the FMLA’s legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103—3, pp. 14—15 (1993) …

Finally, Congress had evidence that, even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways …

In spite of all of the above evidence, Justice Kennedy argues in dissent that Congress’ passage of the FMLA was unnecessary because “the States appear to have been ahead of Congress in providing gender-neutral family leave benefits,” post, at 7, and points to Nevada’s leave policies in particular, post, at 13. However, it was only “[s]ince Federal family leave legislation was first introduced” that the States had even “begun to consider similar family leave initiatives.” S. Rep. No. 103—3, at 20 … (1991) …

In sum, the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic §5 legislation. …

Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

We believe that Congress’ chosen remedy, the family-care leave provision of the FMLA, is “congruent and proportional to the targeted violation … ”

Unlike the statutes at issue in … Kimel … which applied broadly to every aspect of state employers’ operations, the FMLA is narrowly targeted at the fault line between work and family-precisely where sex-based overgeneralization has been and remains strongest and affects only one aspect of the employment relationship.

We also find significant the many other limitations that Congress placed on the scope of this measure … The FMLA requires only unpaid leave … and applies only to employees who have worked for the employer for at least one year and provided 1,250 hours of service within the last 12 months. Employees in high-ranking or sensitive positions are simply ineligible for FMLA leave; of particular importance to the States, the FMLA expressly excludes from coverage state elected officials, their staffs, and appointed policymakers … Congress chose “a middle ground, a period long enough to serve ‘the needs of families’ but not so long that it would upset ‘the legitimate interests of employers.'” Moreover, the cause of action under the FMLA is a restricted one: The damages recoverable are strictly defined and measured by actual monetary losses …

For the above reasons, we conclude that [the Act] is congruent and proportional to its remedial object, and can “be understood as responsive to, or designed to prevent, unconstitutional behavior.”

The judgment of the Court of Appeals is therefore

Affirmed.


Murphy v. NCAA (2018)

584 U.S. ___ (2018)

Decision: Reversed
Vote: 6-3
Majority: Alito, joined by Roberts, Kennedy, Thomas, Kagan, Gorsuch, and Breyer (all but Part VI-B)
Concurrence: Thomas
Concur/dissent: Breyer
Dissent: Ginsburg, joined by Sotomayor

Justice Alito delivered the opinion of the Court.

The State of New Jersey wants to legalize sports gambling at casinos and horseracing tracks, but a federal law, the Professional and Amateur Sports Protection Act, generally makes it unlawful for a State to “authorize” sports gambling schemes … We must decide whether this provision is compatible with the system of “dual sovereignty” embodied in the Constitution.

Americans have never been of one mind about gambling, and attitudes have swung back and forth. By the end of the 19th century, gambling was largely banned throughout the country, but beginning in the 1920s and 1930s, laws prohibiting gambling were gradually loosened …

By the 1960s, Atlantic City, “once the most fashionable resort of the Atlantic Coast,” had fallen on hard times, and casino gambling came to be seen as a way to revitalize the city. In 1974, a referendum on statewide legalization failed, but two years later, voters approved a narrower measure allowing casino gambling in Atlantic City alone. At that time, Nevada was the only other State with legal casinos, and thus for a while the Atlantic City casinos had an east coast monopoly. “With 60 million people living within a one-tank car trip away,” Atlantic City became “the most popular tourist destination in the United States.” But that favorable situation eventually came to an end.

With the enactment of the Indian Gaming Regulatory Act in 1988, casinos opened on Indian land throughout the country. Some were located within driving distance of Atlantic City, and nearby States (and many others) legalized casino gambling. But Nevada remained the only state venue for legal sports gambling in casinos, and sports gambling is immensely popular …

By the 1990s, there were signs that the trend that had brought about the legalization of many other forms of gambling might extend to sports gambling, and this sparked federal efforts to stem the tide. Opponents of sports gambling turned to the legislation now before us, the Professional and Amateur Sports Protection Act (PASPA) …

PASPA’s most important provision, part of which is directly at issue in these cases, makes it “unlawful” for a State or any of its subdivisions “to sponsor, operate, advertise, promote, license, or authorize by law or compact … a lottery, sweepstakes, or other betting, gambling, or wagering scheme based … on” competitive sporting events. §3702(1). In parallel, §3702(2) makes it “unlawful” for “a person to sponsor, operate, advertise, or promote” those same gambling schemes – but only if this is done “pursuant to the law or compact of a governmental entity.” PASPA does not make sports gambling a federal crime … Instead, PASPA allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations.

Another provision gave New Jersey the option of legalizing sports gambling in Atlantic City—provided that it did so within one year of the law’s effective date.

New Jersey did not take advantage of this special option, but by 2011, with Atlantic City facing stiff competition, the State had a change of heart. [I]n 2012 the legislature enacted a law [legalizing sports betting] …

The 2012 Act quickly came under attack. The major professional sports leagues and the NCAA brought an action in federal court against the New Jersey Governor and other state officials (hereinafter New Jersey), seeking to enjoin the new law on the ground that it violated PASPA. In response, the State argued, among other things, that PASPA unconstitutionally infringed the State’s sovereign authority to end its sports gambling ban.

In making this argument, the State relied primarily on two cases, New York v. United States, (1992), and Printz v. United States, (1997), in which we struck down federal laws based on what has been dubbed the “anticommandeering” principle …

New Jersey argued that PASPA is similarly flawed because it regulates a State’s exercise

of its lawmaking power by prohibiting it from modifying or repealing its laws prohibiting sports gambling … The plaintiffs countered that PASPA is critically different from the commandeering cases because it does not command the States to take any affirmative act.  Without an affirmative federal command to do something, the plaintiffs insisted, there can be no claim of commandeering.

Petitioners argue that the anti-authorization provision requires States to maintain their existing laws against sports gambling without alteration. One of the accepted meanings of the term “authorize,” they point out, is “permit … ” They therefore contend that any state law that has the effect of permitting sports gambling, including a law totally or partially repealing a prior prohibition, amounts to an authorization.

Respondents interpret the provision more narrowly. They claim that the primary definition of “authorize” requires affirmative action. Brief for Respondents 39. To authorize, they maintain, means “ ‘[t]o empower; to give a right or authority to act; to endow with authority … ’ ” And this, they say, is precisely what the 2014 Act does: It empowers a defined group of entities, and it endows them with the authority to conduct sports gambling operations.

Respondents do not take the position that PASPA bans all modifications of old laws against sports gambling … but just how far they think a modification could go is not clear. They write that a State “can also repeal or enhance [laws prohibiting sports gambling] without running afoul of PASPA” but that it “cannot ‘partially repeal’ a general prohibition for only one or two preferred providers, or only as to sports-gambling schemes conducted by the state … ”

In our view, petitioners’ interpretation is correct: When a State completely or partially repeals old laws banning sports gambling, it “authorize[s]” that activity. This is clear when the state-law landscape at the time of PASPA’s enactment is taken into account. At that time, all forms of sports gambling were illegal in the great majority of States, and in that context, the competing definitions offered by the parties lead to the same conclusion. The repeal of a state law banning sports gambling not only “permits” sports gambling (petitioners’ favored definition); it also gives those now free to conduct a sports betting operation the “right or authority to act”; it “empowers” them (respondents’ definition).

The concept of state “authorization” makes sense only against a backdrop of prohibition or regulation. A State is not regarded as authorizing everything that it does not prohibit or regulate. No one would use the term in that way. For example, no one would say that a State “authorizes” its residents to brush their teeth or eat apples or sing in the shower. We commonly speak of state authorization only if the activity in question would otherwise be restricted …

The respondents and United States argue that even if there is some doubt about the correctness of their interpretation of the anti-authorization provision, that interpretation should be adopted in order to avoid any anticommandeering problem that would arise if the provision were construed to require States to maintain their laws prohibiting sports gambling. They invoke the canon of interpretation that a statute should not be held to be unconstitutional if there is any reasonable interpretation that can save it. See Jennings v. Rodriguez, (2018). The plausibility of the alternative interpretations is debatable, but even if the law could be interpreted as respondents and the United States suggest, it would still violate the anticommandeering principle, as we now explain.

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of “dual sovereignty.” Gregory v. Ashcroft, (1991).

The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority …

The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine …

We therefore turn to the question whether, as petitioners maintain, our decision regarding PASPA’s prohibition of the authorization and licensing of sports gambling operations dooms the remainder of the Act. In order for other PASPA provisions to fall, it must be “evident that

[Congress] would not have enacted those provisions which are within its power, independently of [those] which [are] not.” Alaska Airlines, Inc. v. Brock, (1987) … We will consider each of the provisions at issue separately.

Under 28 U. S. C. §3702(1), States are prohibited from “operat[ing],” “sponsor[ing],” or “promot[ing]” sports gambling schemes. If the provisions prohibiting state authorization and licensing are stricken but the prohibition on state “operat[ion]” is left standing, the result would be a scheme sharply different from what Congress contemplated when PASPA was enacted … If Congress had known that States would be free to authorize sports gambling in privately owned casinos, would it have nevertheless wanted to prevent States from running sports lotteries?

That seems most unlikely. State-run lotteries, which sold tickets costing only a few dollars, were thought more benign than other forms of gambling, and that is why they had been adopted in many States … To the Congress that adopted PASPA, legalizing sports gambling in privately owned casinos while prohibiting state-run sports lotteries would have seemed exactly backwards …

We reach the same conclusion with respect to the provisions prohibiting state “sponsor[ship]” and “promot[ion].” The line between authorization, licensing, and operation, on the one hand, and sponsorship or promotion, on the other, is too uncertain. It is unlikely that Congress would have wanted to prohibit such an ill-defined category of state conduct …

[W]e hold that no provision of PASPA is severable from the provision directly at issue in these cases …

The legalization of sports gambling requires an important policy choice, but the choice is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens … The Constitution gives Congress no such power.

The judgment of the Third Circuit is reversed.

It is so ordered.



  1. Congress found that, "due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men." In response to this finding, Congress sought "to accomplish the [Act's other] purposes … in a manner that … minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available … on a gender-neutral basis[,] and to promote the goal of equal employment opportunity for women and men. … " (emphasis added) …

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