Since the end of yesterday’s class, a number of students have asked about how we can reconcile the holdings of Garcia and New York? What exactly makes them different in a way that explains the different outcomes?
The essential difference is that in Garcia the statute at issue—the Fair Labor Standards Act—regulated an activity (employing persons) that was not distinctively governmental. It merely regulated the state government’s own conduct as an employer. In contrast, the statute in New York—the Low-Level Radioactive Waste Policy Amendments of 1985—regulated the governmental or regulatory powers of the states. It literally required states to pass and enforce legislation according to particular federal directives. Congress, instead of merely regulating the states as it would any other person or entity, was regulating the states’ regulation of their own citizens. It was forcing (no choice, in theory or in fact) states to do the federal government’s bidding.
Thus, the difference is not that the legislation in New York was coercive. It was indeed coercive, but so was the FLSA: it required all covered employers to pay a certain wage (among other things). Nor is it necessarily that the legislation in Garcia was “generally applicable,” although this gets closer to the mark. General applicability is very formalistic, so it seems not to hold any weight on its own.
But “general applicability” is a good proxy for what really matters. And the reason is that only state or local governments can engage in governmental or regulatory activity. A regulation of these capacities simply cannot apply to private persons, for the simple reason that private persons lack the power to govern or regulate. But I cannot believe that general applicability itself is the real touchstone.
To state it differently, if a federal statute is generally applicable, it cannot be a commandeering, for any commandeering could only target states. But I do not think every statute (or portion of a statute) that happens to apply exclusively to the states is a commandeering.
We will talk more about this at the beginning of class Wednesday.