QUESTION: Can Congress never target state officials directly and soley?
ANSWER: I think that is overstating it a bit. Suppose, for instance, Congress enacts a law (e.g., the FLSA) that applies only to private employers. And then, in another law, it extends the same general requirements to states. Is the second law unconstitutional simply because it applies exclusively to the states? Or consider the DPPA (at issue in Problem 4). Is that unconstitutional because states happen to be the only entities in the United States that originally collect DMV information? I think the "applies exclusively to the states" idea is really a proxy for something more substantive: the regulation of a state's governmental (or regulatory) powers. A federal law that regulates the states' regulatory powers -- that forces the states to regulate their citizens in a particular way -- will always apply exclusively to the states, for the simple reason that private persons (or entities) lack the power to govern or regulate. But it is this underlying, substantive idea that matters (in my view) rather than the purely formal question of who the statute covers.
QUESTION: If Congress did want to regulate handguns under the Commerce Clause then what would have been a way it could have done that without offending the Tenth Amendment?
ANSWER: There are several options. Here are some possibilities, which are by no means exhaustive:
* Offer states money on the condition that they enact a state-level GFSZA
* Comprehensively regulate the interstate market in handguns (a CSA for guns, if you will)
* Pass a law stating that, if states do not regulate handguns in a particular way, the federal government will itself through such comprehensive legislation (conditional preemption)
* Rather than regulate guns comprehensively, tack on a jurisdictional element that ensures that, in each instance, the activity in question has a sufficient connection to interstate commerce (which Congress actually did after Lopez)
* Some combination of some of these
QUESTION: That makes a lot of sense now. I just have trouble with the fact that it seems like such a fine line.
ANSWER: To me -- and I'm sure it is just because I've been thinking about it for about 10 years -- it really is not fine at all. Fine lines, I think, exist when there is not a qualitative difference, but just a quantitative one. The question is how much is too much. Here, I think, there is a principled, qualitative difference between regulating a state's governing capacity (commandeering) and regulating its other behavior (such as its employment practices).
QUESTION: The conditional preemptive seems pretty coercive to me and not much different than Congress actually regulating or directly commandering, but that is just my thought.
ANSWER: It is not coercive in the relevant sense. The state, as a state, is not coerced at all. It can simply stand out of the way and let the matter be the federal government's problem.