State Sovereignty and the Anti-Commandeering Cases

Abstract

The anti-commandeering doctrine, recently announced by the Supreme Court in New York v. United States and Printz v. United States, prohibits the federal government from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials. This doctrine is best understood as an external constraint upon congressional power—analogous to the constraints set forth in the Bill of Rights—but one that lacks an explicit textual basis. Should the Constitution indeed be interpreted to include a judicially enforceable constraint upon national power—and, if so, should that constraint take the form of an anti-commandeering rule?