Legal Commentary

An Act/Omission Limitation on Federal Power Over States?

By Jonathan H. Adler

Orin is concerned about the ability of the Supreme court to draw a line between the federal government?s authority to regulate or prohibit conduct, on the one hand, and its ability to mandate conduct on the other.  Drawing a line of this sort may be difficult, but it is hardly unprecedented.

Consider some of the Court?s decisions regarding state sovereignty which adopt a limitation on federal power that is similar to (though not completely analogous to) the act/omission limitation Orin and Randy have been discussing.  The federal government may prohibit states from engaging in certain conduct, regulate particular conduct, and even place conditions on certain types of conduct, but the federal government may not mandate that states regulate private conduct.  This sort of ?commandeering? is prohibited under New York and Printz.  The federal government may push against this line, such as by attaching conditions to the receipt of federal funds or regulating states in other ways so as to induce their cooperation, but the underlying limitation remains.

The rule against commandeering can be viewed as a limitation very similar to that which Randy has been defending, as the federal government can regulate state conduct (and prohibit it), but  not mandate that states engage in conduct in the first instance.  So, for instance, the federal government can say to states that if they hire employees, they must follow all sorts of rules (e.g. wage, hour and nondiscrimination rules), but the federal government cannot mandate that states hire individuals in the first place.  The federal government may require state governments to undertake steps to mitigate environmental impacts when building roads or other infrastructure, but it cannot neither require a state to construct infrastructure nor take affirmative conservation measures independently of some other activity subject to federal regulatory authority.  The federal government may also condition the receipt of federal monies on compliance with all sorts of conditions on how the money will be spent, and even require recipient states to adopt various programs, but it could not simply mandate that states create the programs in isolation.  This may not perfectly track the act/omission distinction Randy and Orin have been debating, but I think it?s close enough to demonstrate that the Court has engaged in the sort of line-drawing Randy is seeking to encourage here.

Again, my point in raising this is not to say that line-drawing of this sort is easy.  I concede that it is not.  Even lines that appear clear from a distance can be difficult to apply in particular cases.  My point here is simply that the line-drawing the Court would be asked to undertake in the context of the individual mandate does not strike me as any more difficult than the line-drawing the Court has readily undertaken elsewhere, including in the context of the proper balance between federal and state power.

Full post as published by The Volokh Conspiracy on October 18, 2010 (boomark / email).