Commandeering, coercion, and the deep structure of American federalism

The anti-commandeering and anti-coercion principles announced in New York v. United States and NFIB v. Sebelius have great potential importance, but the most prominent justification for them is seriously flawed. This Article elaborates a more persuasive and largely neglected alternative, grounded in the deep structure of American federalism. Simply put, both commandeering and coercive conditional spending transfer control of state governments from their constitutionally designated electoral constituencies to Congress. This threat is probably insufficient to justify the anti-commandeering and anti-coercion principles-it is only one element of a more complex federalism calculus-but any persuasive critique or defense of these doctrines must take account of it.IntroductionThe anti-commandeering principle announced in New York v. United States1 prohibits Congress from compelling state governments to enact, enforce, or administer federal policies.2 Until recently, this doctrine has been of mostly academic interest.3 Congress has seldom sought to commandeer state legislatures or executive officials, and the Supreme Court has invalidated only two statutes on this ground.4 Two recent developments, however, have rendered the anti-commandeering principle far more important.The first is marijuana legalization. Since 1996, twenty-three states and the District of Columbia have legalized the use of marijuana for medical purposes.5 Two of these, Washington and Colorado, have also legalized recreational use, subject to certain regulations.6 The possession, use, and sale of marijuana remain illegal under federal law for any purpose.7 But without the active cooperation of state law enforcement, the vast majority of offenses in legalization states seem likely to go unprosecuted. Federal law enforcement simply lacks the resources to undertake such an effort on its own.8 The anticommandeering principle, however, prohibits Congress from compelling state officials to enforce the federal drug laws.9The other important recent development is the Supreme Court's decision in National Federation of Independent Business v. Sebelius (NFIB).10 In the course of invalidating the Affordable Care Act's Medicaid expansion* 11 as unconstitutionally coercive of the states, the Court drew an explicit line between Congress's conditional spending power and the anti-commandeering principle. At bottom, the Court held coercive exercises of the conditional spending power and commandeering amount to the same thing.12 In both cases, [permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.13 The nub of the Court's accountability concern is the potential for political confusion: '[W]here 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.'14The extension of this logic to the conditional spending power is important because it calls into question an enormous quantity of federal legislation.15 It is troubling because the Court's political accountability argument has been roundly discredited. Indeed, it is difficult to think of a more frequently and persuasively criticized element of the Court's modern federalism jurisprudence. Many commentators question whether political accountability is a constitutional value at all.16 Others have pointed to the dubious empirical premises of the Court's claim that accountability is undermined by commandeering and coercive conditional spending legislation.17 Still others have noted that non-coercive conditional spending poses a far greater threat to political accountability than commandeering or coercive spending legislation.18These are damningly persuasive criticisms. They do not, however, amount to a comprehensive critique of the anti-commandeering and anti-coercion principles, which now loom so large on the landscape of American federalism. …