Can Congress order a state legislature to pass a law?

Only three states had sites that accepted low-level radioactive waste, the kind produced by hospitals, laboratories, and industry. By the mid-1980s those states wanted relief, and every other state needed somewhere to send its own waste. Congress responded with a statute that pushed each state to take care of its own. One of its provisions said that a state that failed to do so would have to take ownership of the waste. New York, which had no disposal site, sued.

What did the radioactive waste law ask of the states?

The statute was the Low-Level Radioactive Waste Policy Amendments Act of 1985. It used three tools to steer the states toward building disposal capacity. The first was a set of monetary incentives: states with disposal sites collected a surcharge on waste from other states, and money flowed back to states that met deadlines. The second was an access incentive. States that missed the deadlines could be charged more, and eventually denied access to the sites altogether. The third was the take-title provision. A state that could not dispose of its waste by a set date had to take title to it, which meant owning it and answering for any harm it caused.

What did the Court uphold, and what did it strike?

In New York v. United States, 505 U.S. 144 (1992), Justice O’Connor wrote for the Court that the first two incentives were valid and the third was not. The first two rested on powers Congress plainly has. It may tax and spend, and it may attach conditions to federal money if the conditions meet the test in South Dakota v. Dole, 483 U.S. 203 (1987). Under Dole, a spending condition must be stated clearly, must relate to the federal interest in the program, and must not be so coercive that the state has no real choice. The access incentive also stood, because Congress may regulate the interstate market in waste, and that includes letting states with disposal sites charge more to waste from states that missed the deadlines, and eventually refuse it.

The take-title provision was different. It offered a state two choices, and each of them was a federal command. The state could regulate waste according to Congress’s instructions, or it could take ownership of the waste and accept liability. Neither choice was open to Congress on its own. Congress may not commandeer, meaning conscript, a state’s legislature to carry out a federal program. The Court later extended the rule to state executive officers in Printz v. United States, 521 U.S. 898 (1997). The Court held that the rule follows from the Tenth Amendment, which reserves to the states the powers not given to Congress, and from the structure of the Constitution, which divides power between two governments that each answer to the people.

The states’ own representatives had negotiated the compromise that became the statute. The Court did not treat that as a cure. The Court reasoned that the constitutional division of authority protects individuals, not state governments as such, so a state’s consent cannot enlarge what Congress has power to do. New York, 505 U.S. at 181-82.

How did Murphy apply the rule to sports betting?

In Murphy v. National Collegiate Athletic Ass’n, 584 U.S. 453 (2018), the question was a federal ban on state sports-betting laws. The Professional and Amateur Sports Protection Act made it unlawful for a state to “authorize by law” sports gambling. 28 U.S.C. § 3702(1). New Jersey had repealed its own prohibitions to allow sports betting at casinos and racetracks. The sports leagues sued, arguing that the repeal violated the federal act.

The Court sided with New Jersey. Justice Alito wrote that the federal act did not regulate private betting operators. It told a state legislature what it could not enact, and that is a command to a state just as a command to pass a law would be. It made no difference that the order took the form “do not” rather than “do.”

The Court also rejected the argument that the act was valid as preemption. Preemption displaces state law when a valid federal law governs private conduct. The federal act had no such rule for private parties. It regulated only the states, so it had no preemptive force to rest on.

Why does the rule turn on who is commanded?

The doctrine draws a line between commanding a state and commanding people. Congress can regulate private conduct directly, and where it does, state law that conflicts with the federal rule can give way. Congress can also offer money with strings attached, within limits. What it cannot do is order a state government to legislate or to administer a federal program. Each of those three paths, direct regulation, conditional funding, and conscription, is a separate question, and the cases turn on which one a statute actually uses.

The Court’s reason is practical. If Congress directs the states, state officials carry out an unpopular policy and take the blame for it. A voter who dislikes a federal rule should know whom to blame.

The line is easier to state than to police. Whether a statute regulates private actors or directs a state can depend on how Congress words it, and the accountability rationale assumes that voters can tell a federal command from a state decision, an assumption the opinions state more than they prove.

Related: Why is the most famous part of Youngstown not what decided it? asks the same structural question about the president instead of Congress. More Con Law posts are collected in Constitutional Law, Plainly.

I am a law student, not a lawyer. Nothing here is legal advice.