States Don’t Have to Comply: The Anti-Commandeering Doctrine


States Don’t Have to Comply: The Anti-Commandeering Doctrine

Mike Maharrey


Most Americans believe that the federal government stands absolutely supreme.

Nobody can question its dictates.

Nobody can refuse its edicts.

Nobody can resist its commands.

This is simply not true.

Laws passed in pursuance of the Constitution do stand as the supreme law of the land. But that doesn’t in any way imply the federal government lords over everything and everybody in America.

First off, as James Madison asserted in Federalist 45, the powers of the federal government are “few and defined.” So federal power actually extends into only a few spheres. Most power and authority was left to the states and the people.

Second, even within those areas that the federal government does exercise authority, it cannot force state or local governments to cooperate in enforcement or implementation. The feds must exercise their authority on their own, unless the state and local governments choose to assist.

Simply put, the federal government cannot force state or local governments to act against their will.

This is known as the anti-commandeering doctrine, and it is well established in constitutional jurisprudence. Four Supreme Court opinions dating back to 1842 serve as the foundation for this legal doctrine.

In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

In the early 90s, the state of New York sued the federal government asserting provisions in the Low-Level Radioactive Waste Policy Amendments Act of 1985 were coercive and violated its sovereignty under the Tenth Amendment. The Court majority in New York v. United States (1992) agreed, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.”

Sandra Day O’Connor wrote for the majority in the 6-3 decision.

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

O’Connor argues that standing alone, both options offered to the State of New York for dealing with radioactive waste in the act represented an unconstitutional overreach. Therefore, forcing the state to choose between the two is also unconstitutional.

A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, “the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine.  At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Finally, the Court ruled that the federal government cannot force the states to act against their will by withholding funds in a coercive manner. In Independent Business v. Sebelius (2012), the Court held that the federal government can not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Roberts argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at ___ (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Taken together, these four cases firmly establish a legal doctrine holding that the federal government has no authority to force states to cooperate in implementing or enforcing its acts. Even lawyers cannot dispute the legitimacy of nullification through noncooperation.

Madison supplied the blueprint for resisting federal power in Federalist 46. The “Father of the Constitution” outlines several steps states can take to stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Anticipating the anti-commandeering doctrine, Madison calls for “refusal to cooperate with officers of the Union” as a method of resistance.

Madison’s blueprint, supported by the anti-commandeering doctrine, provides a powerful tool that states can use to stop unconstitutional federal acts in their tracks. In fact, during the federal government shutdown, the National Association of Governors admitted, “States are partners with the federal government in implementing most federal programs.” That means states can create impediments to enforcing and implementing “most federal programs.”


By simply refusing to provide material support to NSA spying, indefinite detention, unconstitutional violations of the Second Amendment and other unwarrantable acts, states have the power to render these actions unenforceable.

In other words, they can nullify them.

Even the Supreme Court agrees.

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  • Richard

    Yes, but they just use the Interstate Commerce Clause to do whatever they want. Perhaps they can use that to rein in California’s welcome mat to illegal aliens.

    • Now that would be amusing, as bad as they stretch the Commerce Clause on other issues, I am sure they can twist the meaning to stop the illegal support of the illegal Immigrants

      • Richard

        Yes, if they wanted to. I hate to expand Federal control, but California is being overrun…

      • Sisyphus

        National defense is not a matter of commerce, it is a federal responsibility</B.

        • You have no point here

        • And your point is

          • Sisyphus

            No point other than to distinguish between the federal interventionist acts in commerce and its enumerated duty of national defense.

          • So not even related to the topic at hand

          • Sisyphus

            Related but slightly skewed to a stricter reading of constitutionality.
            I do not disagree that states and cities that support an infestation of illegal aliens need to be dealt with soon.
            I am simply of the opinion that to deal with the alien invasion, it must be viewed as a matter of national security or defense.

          • On that I can agree. I have always felt that the only way to stop the massive illegal crossings is to use the military to patrol the border. That and we have to make it easier for immigrants to come across the border for low paying jobs. Right now it is to difficult, hence the flood across the borders. Make it easier for the people that just want to work, then those crossing the borders would really just be the unsavory types

          • Sisyphus

            I even sent a few letters & emails to inquire as to the feasibility of just that.
            It seems to me that the border patrol would welcome the assistance and affirmation.

          • I agree, our border patrol people have their hands tied

  • Lance H

    The problem is that the federal government has successfully coerced many if not most states into dependence. States count on federal funding for this, federal grants for that, so on and so forth. So if states refuse the feds, the feds cut off the money.

    • John Plude

      you will not get road support if not do, fill in what fed wants. have seen.

      • sleepy58

        as is proven with N.C. they will take away the monies being paid to follow the demands of the feds and I hope N.C. says we’ll do fine without your payoff monies, go pound sand is the correct answer for the feds to hear we’ll do what the citizens of the state want is another goodie

    • John Plude

      and you and i pay the bills(taxes)

    • John Plude

      we pay in they take BIG cut, then they ask for more, i wish i had food of one banquet at white house. freeze some for self, give most to homeless shelter i volunteer at.

    • Sisyphus

      Considering the fact that the states have not had the authority to ‘defy’ the fed since the 1860s, one can expect the state to be towing the federal line soon.

      • See: Colorado and Pot laws, California and Pot Laws.

        • Sisyphus

          see the convolutions those states go through to circumvent federal drug/RICO/money laundering laws

          • Convolution is how business is done with the federal government.

          • Sisyphus

            When the fed is exercising power outside its constitutionally permitted authority, it is the states that are supposed to say ‘This far and no further’ however, the separation of powers has been so damaged (mostly by ‘activist judges’ misapplying their office) as to make it nearly impossible to stop the leviathan from rolling over states and individuals.

          • See NC and Texas, and a few other states in regards to the transgender BS, especially after obama mandated that the schools had to let the freaks use the wrong bathroom, the states are already telling him to go pound sand

          • Sisyphus

            Got to be proud of TX and NC for their testicular fortitude.
            They deserve our respect, it is too bad that other states are either too chicken or too addicted to the federal dollar nipple…

          • I must have misread you, we are in agreement

          • Sisyphus

            I have rarely disagreed with you.
            We do agree, other than that we may have different ideas as to how to move on the issues.
            I am not sure at this point that we may be too late to remedy the situation, unfortunately.

          • On the border and illegals we probably are to late. Funny how the Mexicans opposed to us increasing border security do not talk about their wall on their southern border

          • Sisyphus

            Another one of those things that make you go; Hmmmm…


          • Guest4ever


          • Guest4ever

            Darn right! Go NC and Texas! I hope all the rest of the states follow them, but, seeing as I live in ultra-liberal MD, I’m not holding my breath! Wish I could move!

          • In other words you have nothing to refute the point

      • Who says that garbage, when was the Constitution changed that does what you say,

        • Sisyphus

          It is not a matter of constitutionality, it is the fact that DC (under Lincoln) forced states to remain within the union against their wishes, thereby negating the ideal of states rights.
          This abomination has been expanded slowly to this day.
          Consider the acts of the EPA, or DoE.
          Also look at the example of the judicial definition of ‘commerce’.

          This is the leviathan of the fed.

          • The Civil War did not negate the system of dual sovereignty that we have

            Printz V United States decided in 1997 as well as many eariler decisions prove you very wrong
            Now of course I would have no problem taking up arms against people like you to protect that right. And that fight is getting closer every day, and people like you are going to pay dearly if you keep your BS up

            “It is incontestible that the Constitution established a system of “dual sovereignty.” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained “a residuary and inviolable sovereignty,” The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution’s text, Lane County v. Oregon, 7 Wall. 71, 76 (1869); Texas v. White, 7 Wall. 700, 725 (1869), including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State’s territory, Art. IV, §3; the Judicial Power Clause, Art. III, §2, and the Privileges and Immunities Clause, Art. IV, §2, which speak of the “Citizens” of the States; the amendment provision, Article V, which requires the votes of three fourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, §4, which “presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights,” Helvering v. Gerhardt, 304 U.S. 405, 414-415 (1938). Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, §8, which implication was rendered express by the Tenth Amendment’s assertion that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

            The Framers’ experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal state conflict. See The Federalist No. 15. Preservation of the States as independent political entities being the price of union, and “[t]he practicality of making laws, with coercive sanctions, for the States as political bodies” having been, in Madison’s words, “exploded on all hands,” 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911), the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people–who were, in Hamilton’s words, “the only proper objects of government,” The Federalist No. 15, at 109. We have set forth the historical record in more detail elsewhere, see New York v. United States, 505 U. S., at 161-166, and need not repeat it here. It suffices to repeat the conclusion: “The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” Id., at 166. [n.10] The great innovation of this design was that-our citizens would have two political capacities, one state and one federal, each protected from incursion by the other”–“a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens. See New York, supra, at 168-169; United States v. Lopez, 514 U.S. 549, 576-577 (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE Corp., 457 U.S. 624, 644 (1982) (“the State has no legitimate interest in protecting nonresident[s]”). As Madison expressed it: “[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist No. 39, at 245. [n.11]

            This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory, supra, at 458. To quote Madison once again:

            “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” The Federalist No. 51, at 323.

            See also The Federalist No. 28, at 180-181 (A. Hamilton). The power of the Federal Government would be augmented immeasurably if it were able to impress into its service–and at no cost to itself–the police officers of the 50 States.”

          • Sisyphus

            The court has not restrained the federal departments that violate the duality of sovereignty.
            This is where the argument fails. I am not and never have supported these federal over-reaches.

            The founders had it right, it is a shame that those in DC have not complied with the proper restraints.

          • They have is some cases and mostly Scalia like the case of Printz V United States. If we take you position and say the feds have had that since the Civil War, they will just abuse us even more. If on the other hand we stand up and call them out on their BS like the Bundy’s did, people notice

    • Guest4ever

      The STATES have to cut off the feds money. Actually, we little, and few, TAXPAYERS have to cut off the feds money. It’s NOT the feds money in the first place. It’s stolen!

  • Bruna
  • CJS

    Presuming a rule of law and no practice of a double standard is simply stating how a republic should behave. Mybest guess is we are not a nation of laws, we are not a republic. And apparently, as I see it, the rule of progressive thinking has taking over the rule of law.