Commandeering and Originalism

Will Baude’s post on commandeering  prompts me to revisit the doctrine after a twenty-year absence.  I have fond memories of the doctrine, because it can be traced directly to an amicus brief that I wrote for the Council of State Governments in New York v. United States, 505 U.S. 144 (1992).

The original understanding of the founders was not a principal focus of the amicus brief or of the decision in New York v. United States itself — probably because the entire brief was written on a budget of $10 thousand, and I couldn’t afford an associate to check citations, let alone slog through all the ratification debates.  (The doctrine’s origin in an obscure amicus brief may also explain why lawyers speak of the Printz doctrine rather than the New York v. United States doctrine.  Although it came five years later than New York v. United States,  Printz was the Solicitor General’s first opportunity for a full-scale counterattack, which in turn forced the Court to develop more clearly the rationale for its earlier holding.)

New York v. United States was based not so much on an original understanding as on a practical political concern — that federal commandeering makes it less clear which level of government is responsible for a particular policy — and thus which officeholders should be voted out in the next election.  That governance rationale is independent of the ratification debates; indeed, in an odd way it seems to me that the article Will Baude cites may actually bolster the original rationale for New York v. United States.  Because, as the article makes clear, the Anti-Federalists wanted the federal government to rely on state enforcement in order to weaken federal authority.  That is, they hoped that  state authorities could use their enforcement power to blunt or redirect the thrust of federal policy.  In the politics of 1790, it may well have seemed likely that confusion of roles would help the states thwart federal policy.  Today, though, it seems clear that confusion is more likely to favor the dominating authority in Washington.

UPDATE: citation corrected, with thanks to Gunnerer.

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