Congress: Facilitator of State Action

CONGRESS Facilitator of State Action

Joseph F. Zimmerman

CONGRESS

CONGRESS Facilitator of State Action

JOSEPH F. ZIMMERMAN

Published by State University of New York Press, Albany © 2010 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher. For information, contact State University of New York Press, Albany, NY www.sunypress.edu Production by Robert Puchalik Marketing by Anne M. Valentine Library of Congress Cataloging-in-Publication Data Zimmerman, Joseph Francis, 1928– Congress : facilitator of state action / Joseph F. Zimmerman. p. cm. Includes bibliographical references and index. ISBN 978-1-4384-2967-0 (hardcover : alk. paper) 1. State governments—United States. 2. Federal government—United States. 3. Interstate relations—United States. 4. United States. Congress. I. Title. JK2408.Z46 2010 320.473'049—dc22

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For Peggy with love In appreciation of her continuing support

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Contents Preface Acknowledgments

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Chapter One The Federal System

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Chapter Two Devolution of Power

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Chapter Three Facilitation of State Criminal Law Enforcement

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Chapter Four Congressional Financial Assistance

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Chapter Five Facilitation of Interstate Compact Formation

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Chapter Six State-Friendly Congressional Statutes

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Chapter Seven Congressional Facilitation of State Action

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Notes

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Bibliography

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Index

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Preface The theory of dual federalism was an adequate general explanation of national-state relations in the United States during the early decades of the economic union and the political union. Late-nineteenth-century developments, however, deprived the theory of its full validity and it was replaced in large measure by the theory of cooperative federalism, which is a more accurate explanation with its emphasis on the cooperative efforts of the national government and the state governments to solve public problems. The theory, however, is limited in application as it addresses only national-state relations and stresses primarily categorical national grants-in-aid and block grants. This volume offers a new approach to understanding the complexities of the ever-changing division of powers in the United States federal system encompassing national-state, national-local, state-local, and interstate relations. In other words, there has developed a new linkage of national, state, and local governmental powers. Numerous state and local government officers over many decades criticized a large number of the conditions attached by Congress to financial grants-in-aid and the removal of state regulatory powers by preemption statutes. Congress responded in part to a number of the complaints as explained in this volume. With the exception of grants-in-aid, there has been relatively little literature examining voluminous congressional statutes, devolution and other types, designed to facilitate implementation of state actions to solve particular public problems. A detailed examination of such statutes is essential for the development of a more comprehensive theory of federalism in the United States fully explaining national-state relations, national-local, interstate relations, and state-local relations. This volume is the first one to examine congressional devolution of some of its constitutionally delegated regulatory powers to states and other statutes designed to facilitate state actions to solve public problems that need to be included in a general theory of federalism. Devolution dates to the first Congress in 1789, became relatively common in the latter half of the twentieth century, and affected significantly the nature of the federal union. Devolution comports with the principle

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of subsidiarity, incorporated in the current draft of a new European Union Constitution, positing responsibility for a public function should be lodged in the government(s) closest to the people capable of exercising the responsibility in an effective manner. Congressional devolution of powers to states has offset to a minor extent the long-term shift of the public policymaking locus from state and local governments to the national political arena in Washington, D.C., flowing from conditional grants-in-aid and preemption statutes removing regulatory authority from subnational governments. This volume also is the first one to include a comprehensive listing and explanation of congressional statutes, based upon the foreign and interstate commerce clauses and other delegated powers, designed to facilitate state enforcement of their respective criminal laws. States possess the exceptionally broad constitutional reserved police power—to protect public convenience, health, safety, morals, and welfare—that was adequate when crimes generally were restricted to a state. The current interstate and international nature of criminal activities makes necessary national support of state actions to enforce their criminal statutes. Congressional financial assistance to states in the form of grants-in-aid and block grants-in-aid are reviewed along with nonfinancial aid: technical assistance and establishment of programs, such as the national driver register, that facilitate state actions. In addition, congressional actions encouraging states to enter into interstate and federal-state compacts are reviewed. Attention also is focused on several innovative congressional preemption statutes which are labeled state-friendly. They include a complete preemption one requested by governors who reported states were unable to address effectively the problem involving a truck driver holding operator licenses issued by several states who continues to drive after one state has revoked his/her license for a major motor vehicle violation(s). Other preemption acts are state-friendly because they contain an opt-in or opt-out provision or both, allowing a state a degree of flexibility in addressing a problem within the state. Still other state-friendly congressional acts authorize a state to veto an action taken by a national government officer subject to a possible override of the veto by Congress, exempt from preemption any state that has enacted a specified uniform state law drafted by the national conference of commissioners on uniform state laws, provide relief from a burdensome preemption act, allow states to establish regulatory standards more stringent than the national ones, or authorize states to adopt harmonious regulations as an alternative to complete congressional preemption of their regulatory powers in a given field. To identify congressional devolution, preemption, and other key statutes, a literature search was conducted to locate pertinent books, government

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publications, and journal articles. In addition, the index to the United States Code was examined to find legal citations for all pertinent statutes. The concluding chapter (1) reviews the information presented in earlier chapters, (2) offers recommendations to Congress, the president, state legislatures, and governors to initiate actions to strengthen the federal system and make more perfect the economic union and the political union, and (3) advocates a broader nonequilibrium theory of the federal system and use of a kaleidoscope to view the continuing changes in national-state relations, national-local relations, interstate relations, and state-local relations.

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Acknowledgments The author of a scholarly political science book draws heavily upon the published works of other scholars and government publications. Identifying such literature is a daunting task when the subject matter is exceedingly complex. The identification and collection of all pertinent would have been exceptionally time-consuming for the author if he lacked research associates. I was most fortunate to have two outstanding graduate students, Karl G. Schlegel and Katherine M. Zuber as my research associates. They combed numerous data bases in the fields of political science and public law and successfully located important books, government documents, articles, and unpublished materials relating to the subject of Congress facilitating actions by state governments. As usual, a major debt of appreciation is owed to Addie Napolitano for her expert preparation of the manuscript for publication.

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The Federal System

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CHAPTER ONE

The Federal System

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he U.S. Constitution established the world’s first federal system that combines elements of a unitary system and elements of a confederal system by establishing an imperium in imperio, which has proven to be an exceptionally flexible economic union and an exceptionally flexible political union. The flexibility is attributable in large measure to: (1) the broad latent regulatory powers delegated to Congress, reinforced by the supremacy of the laws clause, enabling the national legislature when it so desires to be the principal architect continually readjusting the regulatory competences of the states by preempting some of their reserved regulatory powers and devolving some of its regulatory powers to states; (2) the ability of the U.S. Supreme Court to issue opinions providing definitive interpretations of the Constitution’s provisions and determining the constitutionality of congressional and state statutes; and (3) congressional proposal and state ratification of constitutional amendments. The theory of dual federalism suggests there are two separate planes of government with relatively little interaction between them. On the other hand, the cooperative theory posits continuous interactions between the national and state planes on the basis of comity. Abundant evidence reveals that the cooperative theory possesses more explanatory value than the dual federalism theory although the former theory does not fully explain the operation of the United States federal system which has evolved into an intricate web of regulation. The concluding chapter suggests a general nonequilibrium theory of federalism incorporating national-state, national-local, interstate, and state-local relations, and pertinent decisions of the U.S. Supreme Court. Daniel J. Elazar in 1962 documented in detail national-state cooperation in the United States during the nineteenth century.1 Writing in 1936, Jane P. Clark observed: “The Great War [World War I] impelled federal utilization of state administrative machinery because of the need for a nation-wide army organized by means which would make available concrete knowledge of local situations and personalities,” including administration of the selective

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service system.2 She also provided examples of deputization of state officers by federal officers as illustrated by the food and drug administration issuing commissions to state officers, and deputization of federal officers by state officers as illustrated by state governments deputizing U.S. forest officers as state deputy fish and game wardens.3 Similarly, federal and state officers signed a number of formal joint activity agreements and entered into informal agreements for the loan of personnel. The focus of this volume is congressional actions facilitating exercise by states of their reserved powers to solve public problems. Interestingly, V. O. Key Jr. in 1940 authored an article—“State Legislation Facilitative of Federal Action”—pertaining to congressional New Deal acts and explaining, “The speed with which legislation was enacted by most of the states to facilitate Federal programs may be partly accounted for by the fact that most governors were in sympathy with the general aims of the National Administration.”4 He added that “it appears that there has been developed, more or less without design, a new method of linking Federal and state powers through interrelated Federal and state action.”5 Congress assists states by enacting statutes: (1) expediting the return of fugitives from justice in asylum states, (2) devolving some of its constitutionally enumerated regulatory powers to states, (3) criminalizing the acts of a person(s) transporting across state lines of items acquired in violation of state laws, (4) providing grants-in-aid to states, (5) promoting state enactment of harmonious laws in the form of regional and national interstate compacts and uniform laws, and signing of administrative agreements, and (6) preempting state powers in a state-friendly manner. Relative to the first action above, Congress in 1793 enacted a statute outlining the procedures for the return of a fugitive from justice to settle a dispute between the governors of Pennsylvania and Virginia arising from the fact that Section 2 of Article IV of the U.S. Constitution does not contain rendition procedures.6 A description of the development of the federal system since 1789 will promote an understanding of the role of Congress in facilitating state actions.

Constitutional Developments The signing of the Declaration of Independence in 1776 officially dissolved the ties of thirteen former colonies to the United Kingdom and established them as nation-states that formed a loose military alliance. The Second Continental Congress, a unicameral body composed of an equal number of members from each state, was responsible for superintendence of the prosecution of the Revolutionary War.

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Articles of Confederation Recognizing the need for a more permanent governance structure, the Congress in 1777 proposed the Articles of Confederation and Perpetual Union providing for a league of amity, but boundary disputes delayed ratification and the thirteenth state, Maryland, did not ratify the Articles until 1781. Article II emphasized that “each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the united States in Congress assembled.” A lower case “u” was used in united to emphasize that a national government had not been established and the Articles were a treaty that united the states for only expressed purposes. Article IV contained three important provisions promoting harmonious interstate relations. Citizens of a state were entitled to the privileges and immunities of citizens in each state visited, the asylum state governor must return fugitives from justice to the requesting state, and each state was required to give full faith and credit to the legislative acts, records, and judicial proceedings of sister states. Article IV of the U.S. Constitution incorporates these provisions as they are essential for the health of a confederate or a federal union. Article V authorized each state legislature to appoint two to seven delegates to the unicameral Congress subject to recall. A three-year term limit over a six-year period was established for delegates appointed annually in a manner determined by the state legislature. The delegates from each state collectively possessed a single vote. No executive or judicial branch was established. The powers of Congress were few in number and limited: borrow and coin money, declare war, establish a postal system and standards of weights and measures, negotiate treaties with foreign nations, regulate relations with Indian tribes, and set quotas for each state to furnish men and funds for the army. These limited powers and the lack of authority to levy taxes predestined the confederacy to failure. Defects Experience quickly exposed the defects of the Articles and the weakness of the Congress. The specific defects were Congress’ reliance upon voluntary state contributions of funds, lack of authority to regulate interstate commerce and enforce its laws, difficulty in obtaining funds from foreign lenders, and inability to suppress disorders within states. Congress authorized the printing of paper money, which almost immediately became worthless because of the inability to levy taxes to raise

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revenue. This problem was not the only serious one. Article VI forbade states to “lay any imposts or duties which may interfere with stipulations in treaties” entered into by Congress with foreign nations, but Article IX stipulated commerce treaties may not prevent a state “from prohibiting the exportation of importation of any species of goods or commodities whatsoever . . .” Furthermore, the Articles did not prohibit state-erected interstate trade barriers that soon brought interstate commerce to a near standstill as illustrated by New York taxing firewood from Connecticut and cabbage from New Jersey.7 Captain Daniel Shays, who served in the army during the Revolutionary War, hastened the end of the confederation by leading a rebellion of disgruntled farmers in western Massachusetts in 1786 that spread to within forty-five miles of Boston. The farmers demanded a lowering of real property taxes, cheap money, and suspension of the foreclosure of mortgages. The Commonwealth of Massachusetts was powerless to suppress the rebellion and it was suppressed only when wealthy residents of Boston raised funds for an army led by General Benjamin Lincoln.8 The seriousness of the Articles’ defects induced Maryland and Virginia boundary commissioners in 1785 to recommend that the states send delegates to a meeting in Annapolis in 1786 to develop remedies. Delegates from only five states participated in the conference and memorialized Congress to call a convention to consider drafting amendments to the Articles. Reluctantly, Congress called a convention to meet in Philadelphia in 1787. The Constitutional Convention All states, except Rhode Island, sent delegates to the convention, which met from March 25 to September 17, 1787. Although the states appointed seventy-four delegates, nineteen refused to accept appointments or did not attend the convention. Philosophical and sectional differences divided the assembly with delegates representing the former expressing the fear a stronger national government would be a threat to individual liberties. The latter differences were attributable to the nature of the economy in each region. Five days of negotiations led to a six to one decision to replace the Articles of Confederation and Perpetual Union with a new constitution. Delegates from five states had not arrived by the time of the vote. Delegates debated whether the proposed Congress should be granted authority to review and invalidate state laws, but decided the constitution should not delegate this power. The controversy over state representation in the proposed unicameral Congress, between states with large and small populations, was resolved by the Connecticut compromise providing for a bicameral national legislature with a senate representing each state

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equally and a house representing each state in accordance with its population, with the proviso that each state would have a minimum of one representative. Slavery was the subject of a third controversy, with the northern states generally advocating the immediate termination of the importation of slaves. The agreed-upon compromise clause provides that slaves could be imported for twenty years and Congress could levy a tax of up to ten dollars on each slave imported. Whether Congress should be authorized to impose import and export duties generated a fourth controversy, with the northern states in favor as a source of national revenue and southern states opposed because they would be paying most of the duties in view of the fact that they exported the bulk of their products, which were chiefly agricultural, and imported most of their needed manufactured products. The arrived-at compromise provided Congress could tax imports but not exports. These divisions and compromises should not blind the reader to the fact that there was no serious opposition to fifteen of the eighteen powers proposed to be delegated to Congress. In addition, there was near-unanimous agreement regarding the various prohibitions placed upon Congress and the requirement that states must obtain the permission of Congress to initiate specified proposed actions, including entrance into interstate compacts or agreements or levying of imposts on imports and exports. The delegates approved a constitution establishing a strong President, a Supreme Court, and a Congress possessing specific delegated powers (see below). Fear of a centralized government was reduced by inclusion of “checks and balances” designed to protect the semi-sovereignty of the states and individual liberties from abuse. Ratification Campaign The convention sent the proposed constitution, which was not a popular document, to the state legislatures with the stipulation that each should arrange for the election of delegates to a special convention with the power to ratify or reject the document. The proposed fundamental law was met by several immediate objections: The convention was called to revise the Articles of Confederation and Perpetual Union and not to discard them; The Articles could be amended only with the unanimous consent of the states; The proposed Congress either would be too strong or too weak; And the new government either would be too independent of the states or too dependent upon them. Opposition was strongest in the interior of the nation and regions with a small population. Not surprisingly, farmers and imprisoned debtors favored cheap paper money issued by states.

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The proposed fundamental law forbade Congress to suspend the writ of habeas corpus unless a rebellion or invasion threatens public safety. Congress and the states were forbidden to enact a bill of attainder or ex post facto law, and to impair the obligation of contracts. Opponents focused much of their criticism on the lack of a bill of rights, similar to ones in state constitutions, guaranteeing freedom of assembly, petition, press, religion, and speech. Proponents argued that a bill of rights would be superfluous in view of the fact the constitution grants no powers to Congress to limit the liberties of citizens. Article VII of the proposed fundamental law stipulates it would become effective when ratified by nine states. The Delaware, New Jersey, and Pennsylvania conventions quickly ratified the proposed fundamental law and were followed by the approval of conventions in Connecticut and Georgia. Strong opposition continued in Massachusetts, New York, and Virginia, and their rejection would doom the proposed constitution. The Federalist and Antifederalist Papers Alexander Hamilton, John Jay, and James Madison wrote a series of eighty-five letters to editors of New York City newspapers during the winter and spring of 1787–88 to convince delegates to the state convention to ratify the proposed constitution. The first thirty-six letters were published as a book in late March 1788, the remaining letters were published as a second book in late May, and the two books later were consolidated into one.9 These letters are excellent expositions meriting reading today. The writer of each letter explained and defended a provision of the proposed constitution and ended the letter with the name Publius. Madison in “The Federalist Number 39” explained that the constitution would establish a governance system that would be “neither wholly national nor wholly federal [confederate].”10 It is important to recall that the words confederation and federation in the eighteenth century were used interchangeably. Supporters of the constitution termed themselves federalists in an apparent attempt to appeal to persons opposing a strong national government. Madison in “The Federalist Number 45” emphasized “the powers delegated by the proposed constitution to the federal government are few and defined” and added in “The Federalist Number 46” that “a local spirit will infallibly prevail much more in the members of Congress than a national spirit will prevail in the legislatures of the particular states.”11 Opponents feared the supremacy of the laws clause would permit Congress to convert the proposed federal governance system into a unitary one. Hamilton in the “Federalist Number 33” sought to allay this fear: “If a number of political societies enter into a larger political society, the laws

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which the latter must enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies and individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for political power and supremacy.”12 It is apparent these letters were influential in swaying public opinion in general and in particular the views of delegates to the New York convention, as the latter often lacked a complete understanding of the reasons why each provision was included in the proposed fundamental law. A series of sixteen letters, signed Brutus, was published in the New York Journal in the period October 1787 to April 1788 and were designed to rebut the arguments of the proponents. Although not proven conclusively, available evidence suggests the letters were written by Robert Yates, a delegate to the Philadelphia constitutional convention and an associate of Governor George Clinton of New York. These papers were not published in book form as The Antifederalist Papers and the Constitutional Convention Debates until 1986.13 Brutus, in a letter published on October 18, 1787, attacked the necessary and proper clause and the supremacy of the laws clause and reached the following conclusion: It is true the government is limited to certain objects, or to speak more properly, some small degree of power is still left to the States, but a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual States must very soon be annihilated, except so far as they are barely necessary to the organization of the government. The powers of the general legislature extend to every case that is of the least importance—there is nothing valuable to human nature, nothing dear to free men, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any State, in any way prevent or impede the full and complete execution of every power given.14 The “Federalist Papers,” although influential, did not allay the fear of many citizens that the proposed constitution would create a strong national government. Thomas Jefferson wrote a letter to Madison implying that the Virginia ratification convention would not ratify the proposed document until a bill of rights was incorporated.15 Proponents, in order to convince the conventions in the larger states to ratify the document, promised the

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first action taken by Congress under the constitution would be the proposal of a bill of rights. The constitution officially was ratified when the New Hampshire ratification convention, the ninth one, approved the fundamental document in June 1788. In consequence, elections were held for presidential and vice presidential electors and members of the U.S. House of Representatives in 1788, each state legislature appointed two U.S. senators, and the new national government became effective in 1789.

The Fundamental Law The U.S. Constitution incorporates elements of the unitary and confederate systems of governance to form simultaneously a compound republic and a unitary government by granting Congress complete control over the District of Columbia and U.S. territories.16 The fundamental law delegates to Congress specific regulatory powers and one service provision power, the postal service, including exclusive and concurrent ones. Ratification of the Tenth Amendment in 1791 reserves all other powers not delegated or prohibited to the states and the people. Delegated Powers Section 8 of Article I delegates the following powers to Congress: To lay and collect taxes, duties, imposts and excises, to pay the debts and to provide for the common defence and general welfare of the United States, but all duties, imposts, and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several States, and with the Indian Tribes; To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of sciences and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

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To constitute tribunals inferior to the supreme court; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces, suppress insurrections, and repel invasions; To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; —and To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. Implied Powers An argument erupted between individuals supporting a loose interpretation of the delegated powers and those favoring a strict interpretation. Hamilton, for example, maintained Congress was empowered to charter a national government bank and Jefferson countered Congress lacked such a power since chartering a bank was not among the delegated powers. Enactment of the Alien and Sedition Acts disturbed Jefferson and Madison. The latter expressed his strong opposition to the acts: “The sedition act presents a scene which was never expected by the early friends of the Constitution. It was then admitted that the State sovereignties were only diminished by powers specifically enumerated, or necessary to carry the specified powers into effect. Now, Federal authority is deduced from implication;

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and from the existence of State law, it is inferred that Congress possesses a similar power of legislation; whence Congress will be endowed with a power of legislation in all cases whatsoever; and the States will be stripped of every right reserved, by the concurrent claims of a paramount legislature.”17 Implied powers are essential for implementation of expressly delegated powers. The necessary and proper clause, also known as the elastic clause, is the basis of the doctrine of implied powers enunciated by the U.S. Supreme Court in McCullough v. Maryland in 1819: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”18 Resultant Powers Two or more expressly delegated powers can be utilized by Congress to infer it possesses a resultant power. For example, Congress expressly is authorized “to establish a uniform rule of naturalization,” but is not specifically delegated the power to regulate immigration. The Constitution also grants Congress authority to regulate commerce with foreign nations. This power, the power to regulate the naturalization of aliens, and the power of the Senate to confirm treaties with foreign nations negotiated by the president serve as the constitutional basis for regulation of immigration. A second example is congressional use of its delegated powers to borrow funds and to coin money as constitutional authority to issue paper money. The Supremacy of the Laws Clause This clause, in common with the necessary and proper clause, does not delegate a power to Congress. A compound republic with a national legislature and state legislatures with each possessing concurrent powers is faced with the problem of potential conflicts of laws. To solve such conflicts, Article VI of the constitution stipulates: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the Constitution or Laws of Any state to the contrary notwithstanding.” The reader should be aware the lower U.S. courts and the U.S. Supreme Court do not always invalidate a state constitutional provision or statute facially conflicting with an act of Congress by opining the conflict is not the type conferring jurisdiction upon these courts. It also should be noted courts often negate only one or two sections of a state statute conflicting with a

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congressional enactment and the remainder of the state statute remains in effect unless it contains a provision for invalidation of the entire law in the event a section is found to be unconstitutional. A significant number of congressional statutes do not contain an expressed preemption provision removing regulatory powers from subnational governments, and consequently state and U.S. courts are called upon to rule whether these statutes are preemptive and whether they supersede all state authority in the regulatory field or only part of it. The General Welfare Clause A number of observers misinterpret this clause, which does not delegate a power to Congress, as authorizing enactment of any law promoting the general welfare of the United States. Such interpretation would mean the governance system of the United States is a unitary one in view of the supremacy of the laws clause that provides for the supersession of any provision in a state constitution or statutes in direct conflict with a congressional act. The Constitution authorizes Congress to provide only one service, the postal service, on other than federal property within states; state and local governments provide all other services. Furthermore, the Constitution does not delegate authority to Congress to exercise the police power as it is the exclusive reserved power of states to regulate individuals and property in order to promote and protect public health, safety, welfare, morals, and convenience. Congress, however, encourages provision of services by subnational governments and influences their nature by means of conditional grants-in-aid and employs its interstate commerce regulatory power to protect public health, safety, welfare, and morals of citizens.

Congressional Preemption Knowledge of the constitutional basis of congressional preemption statutes is essential to understand their importance and the changes in the nature of the federal system produced by such statutes removing completely or partially regulatory powers from states and by extension local governments.19 The U.S. Constitution delegates powers in broad terms to Congress to be employed in response to challenges and problems, domestic and international, thereby guaranteeing the fluid nature of the federal governance system. The reader should note these powers are latent ones exercisable by Congress on a discretionary basis. The failure of Congress to enact a regulatory power based upon its authority to regulate interstate commerce until 1887 led many writers and the U.S. Supreme Court to refer to the silence

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of Congress.20 Additionally, Congress is free to devolve its legislative powers, except coinage, to state legislatures and has enacted several devolution statutes commencing with a 1789 act devolving to state legislatures the power to regulate marine port pilots (see chapter 2).21 Nature of Preemption The national legislature can utilize its delegated powers to enact at any time statutes removing partially or completely and prospectively and/or retrospectively the regulatory powers of subnational governments in a given field. Furthermore, a preemption provision not based upon an expressly delegated power, such as one regulating migratory birds, can become effective by the president negotiating a treaty with a foreign nation and approval of the treaty by the Senate in accordance with Section 2 of Article II of the U.S. Constitution. Bills implementing free trade concordats with other nations in recent years have been termed agreements, such as the North American Free Trade Agreement, rather than treaties, as the former requires only an affirmative majority vote of each house for passage compared to a two-thirds affirmative vote in the Senate required for approval of a treaty.22 Occasionally, Congress includes a savings clause in a statute preserving part of the regulatory authority of states in what otherwise would be a complete preemption act (see chapter 2). Critics of congressional preemption statutes refer to the costs imposed upon states and some suggest subnational governments are becoming little more than administrative subdivisions of the national government. In fact, many complaints about federal mandates and federal restraints do not involve preemption and are the result of subnational governments applying for and accepting federal conditional grants-in-aid. Important preemption statutes are the product of interest group lobbying. President Lyndon B. Johnson sent a message to Congress in 1967 recommending enactment of an air quality statute removing all regulatory powers from the states. Governor Nelson A. Rockefeller of New York led a campaign to forestall enactment of such a law and proposed as an alternative a series of interstate compacts including the mid-Atlantic states air pollution control compact, which was enacted by the Connecticut, New Jersey, and New York state legislatures. The attempt was unsuccessful as the compact did not receive the constitutionally required consent of Congress, but helped to persuade Congress to enact the Air Quality Act of 1967 allowing states to continue to regulate air pollution abatement, except emissions from motor vehicles, provided state standards are at least as stringent as the national standards and are enforced by qualified personnel.23

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The motor vehicle industry, for example, in the mid-1960s was facing the spread of nonharmonious state emissions standards, feared each firm might have to develop as many as fifty emission control systems, and pressured Congress to enact the proposed Air Quality Act of 1967. California had stricter motor vehicle air quality emission standards than the proposed national standards that would have been superseded, and lobbied for an exemption that was incorporated in the act. Although preemption statutes remove regulatory powers from states, the latter do not always oppose enactment of such statutes and occasionally governors request Congress to enact a specific act. The national governors association, for example, requested Congress to enact the Commercial Motor Vehicle Safety Act of 1986 because states could not solve the problem created by operators of commercial vehicles holding operating licenses from more than one state and continuing to drive after state revocation of their license for dangerous driving by utilizing a license issued by a sister state (see chapter 6).24 Most preemption statutes are based upon the interstate commerce clause, but others are based upon constitutional authority to enact laws relating to bankruptcy, copyrights, foreign commerce, naturalization, patents, and taxation. The coverage of a preemption statute may be broadened by enactment of amendments, as illustrated by the Clean Air Act Amendments of 1990.25 A small number of preemption laws each contains a sunset clause providing for the expiration of the law on a specified date unless Congress extends the law.26 A preemption statute may be as short as one page or several hundred pages in length. Congress increasingly has been including such statutes in detailed and lengthy omnibus appropriation acts and other annual appropriations acts. Types The body of laws produced by preemption statutes is complex. Such statutes may be classified by type as complete, partial, and contingent.27 The first type removes all state regulatory authority in a given regulatory field, but may permit states to cooperate in the enforcement of the act. An examination of such statutes reveals there are eighteen subtypes including ones dependent upon state assistance for the achievement of their respective goal(s). A non-preemptive statute—Do-Not-Call Implementation Act of 2003—is becoming a de facto complete preemption act as states, which initiated such registries, transfer them to the federal registry.28 There are four types of partial preemption statutes. A partial preemption statute may (1) occupy part of a specified regulatory field,

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(2) establish minimum regulatory standards allowing a state granted regulatory primacy by the U.S. Environmental Protection Agency (EPA) or the U.S. Department of the Interior to continue to regulate the field completely provided its standards meet or exceed the national ones and are enforced, (3) authorize a state to establish a more stringent regulatory standard in a particular field without advanced approval of a U.S. department or agency, or (4) permit a state to establish a more stringent procedural standard in a specified field without advanced federal approval. Two more stringent state regulatory standards preemption acts and one more stringent state procedural standards act have been enacted to date. The latter act is the first of its type and is contained in the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005.29 The type of partial preemption that has had the greatest impact on the nature of the federal union is minimum standards preemption, a state-federal partnership approach, encouraging states to employ their latent reserved powers (see chapter 2). States are completely responsible for regulating, and the concerned national agency’s role is monitoring state performance and providing financial and technical support. Enactment Pace Congress enacted its first two preemption statutes in 1790: The Copyright Act and the Patent Act. The enactment pace subsequently was slow, with only twenty-nine acts enacted by the end of the nineteenth century.30 Such statutes continued to be enacted at a slow pace during the first five decades of the twentieth century: fourteen (1900–09), twenty-two (1910–19), seventeen (1920–29), thirty-one (1930–39), sixteen (1940–49), and twenty-four (1950–59). The enactment pace increased sharply commencing in 1965: 47 (1960–69), 102 (1970–79), 93 (1980–89), 84 (1990–99), 106 (2000–07), and 124 (2000–08). By May 1, 2009, 609 preemption statutes had been enacted since 1790. It is important to note the number of preemption acts enacted during any given time period is not an accurate indicator of the amount and importance of regulatory authority removed from states and their political subdivisions. For example, President George W. Bush approved eighty-four preemption acts in the period 2001–07, yet relatively little exercised regulatory powers were removed from states although each of the three Internet tax freedom acts prevent states from levying and collecting internet access taxes.31 The Republican-controlled Congress (1995–2006) reacted to state and local government officers’ criticisms of unfunded mandates by enacting the Unfunded Mandates Reform Act of 1995 establishing mandatory procedures Congress must follow to enact mandates, but not forbidding the enactment

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of such mandates.32 This Congress also enacted the Safe Drinking Water Act Amendments of 1996 offering relief from the expensive filtering mandates that were forcing small local governments either to file for bankruptcy protection or to abandon their drinking water supply systems and also were imposing major financial burdens on larger local governments.33 Significance of Preemption The U.S. Constitution does not contain a mechanism ensuring that the initially established division of powers between the national government and the states would continue into the future. Congress was designed with the expectation that it would employ its latent delegated regulatory powers and become the supreme regulator adjusting the nature of the federal union to meet emerging challenges and problems. Extensive congressional use of its preemption powers since 1965 has produced without constitutional amendments what may be labeled a major governance revolution silently transforming the nature of the national economic union and the national political union. It is particularly noteworthy that Congress since 1978 has enacted preemption statutes providing for increased regulation of states as polities and extensively deregulating the banking, electric energy, natural gas, telecommunications industries. Furthermore, Congress enacted statutes providing for the complete economic deregulation of air, bus, and rail transportation companies. Democratic theory is premised upon active and informed citizens participating in the governance process. Such participation is limited when Congress makes preemption decisions. Although public hearings are held on a number of preemption bills, few citizens possess the necessary funds and time to travel to Washington, D.C., to testify and they also lack the detailed technical information and staff possessed by resource-rich special interest groups. Many preemption statutes, particularly environmental regulatory ones, are outline or skeleton laws containing broad policy outlines and authorizing heads of departments and agencies to promulgate detailed implementing rules and regulations. The enhanced role of bureaucrats in determining public policy raises questions of the democratic legitimacy of the policymaking process as citizens have limited opportunities to influence the rule-making process compared to interest groups. In contrast to national decision making, the local government plane, with its relatively small geographical scale, provides citizens with the greatest opportunity to exert effective influence during the policymaking process. To the extent congressional preemption, directly or indirectly through the states by means of minimum standards preemption statutes, limits the discretionary

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authority of general-purpose local governments, participatory democracy will suffer. This conclusion is reflected in public opinion polls consistently revealing that citizens generally have the highest respect for local governments and the least respect for the national government. Congress finances in part programs established by preemption statutes by including in them unreimbursed mandates which often are costly and must be implemented by subnational governments. Several of these statutes also include restraints forbidding these governments to initiate specified actions and necessitating the use of costly alternatives. The Ocean Dumping Ban Act of 1988, for example, prohibits dumping of sewage sludge in the ocean and thereby requires municipalities located near an ocean to utilize the expensive alternative of incinerating the sludge or placing it in a landfill.34 The Unfunded Mandates Reform Act of 1995 has not provided relief to state and local government from such mandates and restraints. The Safe Drinking Water Act Amendments of 1996, on the other hand, offer major relief to public suppliers of drinking water, particularly small suppliers. The fact that regulatory decision making has become more centralized in Congress, which has become a unitary government in fields it has completely preempted, should not obscure the fact that states retain a broad range of regulatory powers and continue to enact innovative statutes subsequently enacted by Congress and sister states. Somewhat surprisingly, the national government directly administers few programs it did not administer prior to 1965 and continues to rely heavily upon states for assistance in emergencies, inspections and enforcement of national regulatory standards, planning, and technical assistance. States utilize their concurrent powers to continue to regulate effectively in partially preempted fields and occasionally demonstrate the inadequacy of enforcement by a national department or agency, as illustrated by New York State Attorney General Eliot Spitzer who employed a decades-old state law to sue successfully the ten largest Wall Street brokerage firms for fraud.35 The U.S. Securities and Exchange Commission, charged with administering ten regulatory statutes, was embarrassed by Spitzer’s success in this suit and other suits. Available evidence indicates Congress will continue to enact preemption statutes, some with innovative state opt-in and/or opt-out provisions, at a relatively rapid pace to cope with problems flowing from growing globalization of the U.S. economy, free trade agreements with foreign nations, interest group lobbying, and technological developments. The foci of such statutes probably will be consumer protection, banking, communications, environmental protection, financial services, and protection from terrorists. If state legislatures fail to harmonize their statutes levying taxes upon inter-

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state commerce, it is probable that Congress will break more frequently its silence on such taxation by enacting preemption statutes.

An Overview The remaining chapters examine the facilitating roles played by Congress in assisting states to achieve their respective goals. Chapter 2 explains the powers devolved by the U.S. Constitution to the states and focuses primarily upon congressional devolution of certain of its legislative, executive, and administrative powers to states, thereby strengthening their position as residuary sovereigns. Chapter 3 examines congressional acts designed to facilitate enforcement of state criminal and other laws dating to the Wilson Act of 1890 stipulating alcoholic beverages entering a state are subject to its police power. The subjects of chapter 4 are the respective power of Congress and state legislatures to tax, federal direct and indirect financial assistance dating to Congress in 1790 assuming the Revolutionary War debt of the states, and subsequent administrative assistance to states. Chapter 5 describes congressional actions (1) encouraging state legislatures to enact harmonious regulatory statutes including interstate compacts and uniform state laws drafted by the national conference of commissioners on uniform state laws and other organizations, and (2) facilitating the entrance of states into interstate administrative agreements such as the international fuel plan and the international registration plan. The subject matter of chapter 6 is state-friendly congressional preemption statutes including ones (1) requested by state officers such as the Commercial Motor Vehicle Safety Act of 1986, (2) with innovative provisions containing opt-in and/or opt-out sections as found, for example, in the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, and (3) directly benefiting states as illustrated by the Abandoned Shipwreck Act of 1987, which gives a clear title to a shipwreck to the state in which the wreck is located. The concluding chapter (1) reviews congressional statutes and resolutions facilitating state governmental action, (2) presents recommendations to enhance the facilitating role of Congress, (3) draws conclusions with respect to the degree to which the current federalism theories adequately explain the functioning of the federal system, and (4) offers the outline of a broader theory of federalism encompassing national-state, national-local, interstate, and state-local relations, and decisions of the U.S. Supreme Court.

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CHAPTER TWO

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he U.S. federal system was a relatively simple one when inaugurated in 1789 and remained so for decades when interactions between the general government and the states were rare other than the election of two U.S. senators by each state legislature and state conduct of elections for members of the U.S. House of Representatives and the Electoral College. The theory of dual federalism held great explanatory value for this time period. Today, the federal system is the most complex one in the world as the result of the enactment of numerous congressional grants-in-aid, devolution, and preemption statutes. There are three types of power devolution by a superior government to one or more inferior governmental units. The first and most important type is legislative power devolution. The second type, executive power devolution, allows inferior units to make executive decisions. The third type, administrative devolution, authorizes lower tier units to administer programs previously administered by the general government.1 Textbooks on the U.S. federal system explain the powers delegated by the U.S. Constitution to Congress and the president by Article I and Article II, respectively, and the powers reserved to the states and the people by the Tenth Amendment. Generally omitted are five powers devolved by the constitution to the states. Section 4 of Article I authorizes each state legislature to determine “the times, places, and manner of holding elections for Senators and Representatives” subject to possible alteration by Congress. Section 10 of Article IV allows states to enter into interstate compacts with sister states and to levy import and export taxes with the consent of Congress. Section 1 of Article II provides: “Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . .” An interstate agreement, based upon this section and the interstate compact clause, has been introduced in state legislatures and provides for the election of the president and vice president by direct popular vote if states (including the District of Columbia) with 19

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270 electoral votes enact the agreement.2 The agreement avoids the need to amend the U.S. Constitution to provide for the direct election of the president and the vice president. The agreement is a nonpolitical one and hence is not subject to the consent of Congress.3 Article V empowers the legislatures of two-thirds of the states to require Congress to call a convention for the purpose of proposing constitutional amendments. This devolved power, however, has not been invoked by the states. And the Twenty-First Amendment stipulates: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” These constitutionally devolved powers are outweighed in terms of importance by congressional statutes devolving legislative, executive, and administrative powers to states, including the grant of consent to political interstate compacts allowing the compact commission or state legislatures to initiate regulatory actions that otherwise would be unconstitutional for individual states to implement.4 Did the framers of the U.S. Constitution contemplate that a future Congress would devolve one or more of its delegated regulatory powers to states? The historical records are silent on this subject and the constitution contains only one provision prohibiting congressional devolution of one of its powers to states. Section 8 of Article I delegates the power of coinage to Congress and Section 9 forbids states to coin money. Justice William J. Brennan of the U.S. Supreme Court in 1985 wrote: “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on applications of principle to specific, contemporary questions. . . . Typically, all that can be gleaned is that the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hid their differences in cloaks of generality.”5 Congress at its discretion, with the exception of coinage as noted, may devolve one or more of its legislative, executive, and administrative powers to states, thereby facilitating state initiation of needed regulatory programs. Congress enacted its first legislative devolution statute in 1789 and continues to devolve powers to this day. An exceptionally detailed listing of devolved powers is necessary if one is to appreciate the degree to which these powers have facilitated state actions and increased the complexity of the federal system.

Devolved Legislative Powers Congress may devolve unrestricted or restricted powers to states. If Congress so desires, it can add restrictions to earlier unrestricted devolved powers.

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Unrestricted Devolution Two devolution statutes, regulation of marine pilots and insurance, initially were unrestricted. Marine Activities Congress in 1789 devolved for the first time one of its powers to states by authorizing them to regulate marine ports visited by ships from other states and foreign nations.6 The current Shipping Statute, revised in 1983, includes a section varying only slightly from one contained in the 1789 devolution statute and provides “pilots in the bays, rivers, harbors, and ports of the United States shall be regulated only in conformity with the laws of the States.”7 The 1983 statute, however, contains another provision exempting from state regulation a pilot of a “coastwise seagoing vessel” licensed by the federal government by forbidding states “to impose on a pilot licensed under this subsection an obligation to procure a State or other license, or adopt any other regulation that will impede the performance of the pilot’s duties under the laws of the United States.”8 Furthermore, the statute forbids a state or a local government to regulate pilotage on the Great Lakes as a treaty between the Canada and the United States regulates such pilotage.9 The Port and Tanker Safety Act of 1978, authorizes the secretary of transportation to require federally licensed pilots on all domestic and foreign self-propelled vessels “engaged in foreign trade when operating in the navigable waters of the United States in areas and under circumstances where a pilot is not otherwise required by state law.”10 This act also devolves authority to states to prescribe higher “safety equipment requirements or safety standards” than federal ones for bridges and other structures on or in the navigable waters of the United States.11 The Vessel Safety Standards Act of 1983 authorizes states to regulate navigation on navigable waters of the United States.12 In 1984, Congress enacted the Marine Sanctuaries Act Amendments authorizing the drafting of regulations by regional fisheries management councils whose members are selected in part by state government officers.13 The Coast Guard Authorization Act of 1984 directs the secretary of transportation to develop standards for determining whether an individual is intoxicated while operating a marine recreational vessel.14 The Coast Guard, a unit of the Department of Transportation, in 1987 encouraged states to adopt such standards by promulgating a rule adopting the state blood-alcohol content (BAC) standard if there is one, but also establishing a federal BAC standard of 0.10 percent in the absence of a state standard.15

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Insurance Regulation States historically regulated the business of insurance. In 1868, the U.S. Supreme Court confirmed the states’ regulatory power by opining that the business of insurance was not commerce and hence was not subject to regulation by Congress under its delegated power to regulate commerce among the several states.16 The Court overturned this decision in 1944 when it ruled the business of insurance involves interstate commerce.17 Alarmed by the loss of revenue derived from regulating the insurance industry, states successfully lobbied Congress to enact the McCarran-Ferguson Act of 1945 exempting state regulation of the industry from the antitrust statutes and devolving upon the states the power to regulate the business of insurance.18 In 1986, Congress enacted the Liability Risk Retention Act of 1986 devolving the power to regulate risk retention groups to states.19 In 1981, Justice William Brennan identified three provisions of the U.S. Constitution “under which a taxpayer may challenge an allegedly discriminatory state tax: the commerce clause, the privileges and immunities clause, and the equal protection clause.”20 The case involved a challenge by an Ohio insurance company of a California retaliatory tax authorized by a 1964 state constitutional amendment.21 The Court rejected the privileges and immunities challenge and explained that under the act an interstate commerce clause challenge and equal protection of the laws clause challenge were inapplicable because the California state legislature defined the tax as a privilege tax. The Court in 1985, however, held the act does not protect a state tax discriminating against a foreign insurance company from an equal protection of the laws challenge and invalidated an Alabama statute levying a substantially higher gross premiums tax rate on foreign companies than the rate levied on domestic insurance companies.22 In 1996, the U.S. Supreme Court in Barnett Bank of Marion County v. Florida Insurance Commissioner et al. reversed the decisions of the U.S. District Court for the Middle District of Florida and the U.S. Court of Appeals for the Eleventh Circuit and opined that a 1916 congressional statute preempted a Florida statute prohibiting national banks to sell insurance.23 The 1916 act authorizes national banks in any location with a population of not more than five thousand to “act as the agent for any fire, life, or other insurance company authorized by the authorities of the State.”24 The U.S. Supreme Court in 2003 addressed the question of whether the congressional Employees Retirement Income Security Act of 1974 preempts the “any willing provider” provision of the Kentucky Health Care Reform Act.25 The Court issued a unanimous opinion acknowledging its two earlier McCarran-Ferguson decisions raised “more questions than they answer and

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provide wide opportunities for divergent outcomes.”26 Most importantly, the Court abandoned “the McCarran-Ferguson factors” and held that the Kentucky law was constitutional because it satisfied the requirement that a law “must be specifically directed toward entities engaged in insurance” and “must substantially affect the risk pooling arrangement between the insurer and the insured.”27 The McCarran-Ferguson Act ensures that state regulation of the insurance industry would continue to be nonharmonious, thereby imposing significant compliance costs upon firms operating in two or more states. With the passage of time, the industry became more frustrated with state regulation that required a national firm to obtain regulatory approval for a new insurance product in each of the fifty states and the District of Columbia, a process requiring up to eighteen months. In consequence, the industry commenced to lobby Congress to preempt some of the state regulatory authority over the industry. Congress responded with the Gramm-Leach-Bliley Financial Modernization Act of 1999 preempting in part state regulatory powers by establishing maximum standards for thirteen specified areas of insurance regulation and threatening to adopt a national licensing system for insurance agents if a minimum of twenty-six states failed to adopt a uniform licensing system, certified by the national association of insurance commissioners (NAIC), by November 12, 2002.28 A federal licensing system was averted when NAIC on September 10, 2002, certified that thirty-five states had adopted a uniform insurance agent licensing system. This act also contains an unusual preemption provision pertaining to insurance customers’ protections: If the Federal agencies [Board of Governors of the Federal Reserve System and Comptroller of the Currency] (i) jointly determine any provision of the regulations prescribed under this section affords greater protections than a comparable State law, rule, regulation, order, or interpretation, those agencies shall send a written preemption notice to the appropriate State regulatory authority to notify the State that the federal provision will preempt the state provision and will become applicable unless, not later than 3 years after the date of such notice, the State adopts legislation to override such preemption.29 On September 11, 2001, terrorists attacked the World Trade Center in New York City and the Pentagon in Arlington, Virginia. These attacks impacted adversely casualty and property insurance companies and raised the question whether they would provide coverage for business firms and

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individuals against future terrorism acts. Congress responded by enacting two statutes. The Air Transportation Safety and System Stabilization Act of 2001 provides that liability claims arising from September 11, 2001, terrorist-related aircraft crashes against any air carrier are limited to the liability coverage maintained by the carrier and grants the U.S. District Court for the Southern District of New York original and exclusive jurisdiction over all actions brought by claimants.30 The Terrorism Risk Insurance Act of 2002 provides for a temporary national government program to ensure the availability, at affordable premiums, of casualty and property insurance for terrorism risk.31 A clause in the act preempts the regulatory authority of the states: “State approval of any terrorism exclusion from a contract for property and casualty insurance that is in force on the date of enactment of this Act shall be void to the extent that it excludes losses that would otherwise be insurance losses.”32 The act’s sunset provision of December 31, 2005, was extended to December 31, 2007, by the Terrorism Risk Insurance Act of 2005, and to December 31, 2014, by the Terrorism Risk Insurance Reauthorization Act of 2007.33 The Gramm-Leach-Bliley Act convinced NAIC that state legislatures must initiate action to make insurance regulations more harmonious and provided leadership by proposing a model act and an insurance product regulatory compact. NAIC drafted and promoted the enactment by forty-seven state legislatures of the producer licensing model act providing for interstate reciprocity of licenses.34 The association also advocated uniform state policies and launched an accreditation program involving an independent team reviewing the policies of each state insurance department to determine its compliance with the standards.35 The U.S. General Accounting Office concluded that NAIC “through its accreditation program had made considerable progress in achieving greater uniformity in carrying out their financial solvency oversight responsibilities.”36 NAIC also decided to draft an interstate insurance product regulatory compact with authority to establish uniform policies for annuity, disability income life, and long-term health care products.37 As of June 1, 2009, thirty-four state legislatures and the Puerto Rican legislature had enacted the compact creating a commission that acts as a central filing and decision-making body, thereby expediting the process of obtaining regulatory approval for new insurance products. Restricted Devolution Congress in devolving power to states to regulate in other specified fields restricted the exercise of the devolved powers.

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Cable Television The Cable Communications Policy Act of 1984 devolves power to subnational governments to issue and renew cable television franchises, subject to national franchise renewal standards that make denial of a franchise renewal request difficult.38 Each subnational franchising authority is required to assess whether 1. The cable operator has substantially complied with the material terms of the existing franchise and with applicable law; 2. The quality of the operator’s service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, quality, or level of cable services or other services provided over the system, has been reasonable in the light of community needs; 3. The operator has the financial, legal, and technical ability to provide the services, facilities, and equipment as set forth in the operator’s proposal; and 4. The operator’s proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.39 A cable operator denied renewal of a franchise is authorized to seek relief in a state court or the U.S. district court. The court may grant relief if “the adverse finding of the franchise authority with respect to each of the factors . . . is not supported by a preponderance of the evidence.”40 Citizens Band Radio The State and Local Enforcement of Federal Communications Commission Regulations on Use of Citizens Band Radio Equipment Act of 2000 devolves authority upon a state legislature or a local government legislative body to enact a law or ordinance prohibiting a violation of specified regulations promulgated by the federal communications commission (FCC).41 Firearms Congress enacted the National Firearms Act of 1934 imposing an annual $200 firearms dealers’ license tax.42 The act was challenged on the constitutional ground of encroaching upon the reserved powers of the states protected by the Tenth Amendment, but the U.S. Supreme Court in 1937 rejected

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the challenge and explained, “[A]n inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of the courts.”43 A 1994 amendment mandates that an individual required to register for a license under the act must include a photograph and fingerprints with the initial application and cannot operate a firearms business if a state or local law where the business would be conducted prohibits the business.44 Gambling Congress devolved authority to state legislatures to regulate horseracing and lotteries, and to governors to enter into state-tribal compacts permitting gambling on Indian reservations. The Interstate Horseracing Act of 1978 devolves powers to states, including limited ones to preempt the federal prohibition of interstate off-track wagering.45 A court challenge was launched against the act on the ground of restriction of commercial free speech. In 1993, the U.S. District Court for the Eastern District of Kentucky granted summary judgment by opining the act violates the U.S. Constitution’s First Amendment’s guarantee of freedom of speech, is unconstitutionally vague, and is an irrational means to achieve a permissible goal.46 The U.S. Court of Appeals for the Sixth Circuit, however, reversed the decision in 1994 by holding that the act does not regulate commercial speech since off-track wagering can occur in the absence of simulcasting, the act regulates a very narrow subject and hence a “less strict vagueness test” is applicable to the act, and “the act does not delegate legislative power to private parties.”47 In 1951, Congress enacted two statutes designed to assist state enforcement of their antigambling criminal laws. The Johnson Act of 1951 prohibits the interstate transportation of gambling devices and contains a devolution provision; to wit, the statute does not apply to a state if its legislature enacts a law opting out of the prohibition.48 The Floral Garden Banks National Marine Sanctuary Act of 1992 amends the Johnson Act by stipulating the act “does not prohibit the transport of a gambling device to a place in a State or possession of the United States on a voyage” provided the use of the device is not a violation of the act and the “device remains on board that vessel while in that State.”49 Although the 1992 amendment does not prohibit “the repair, transport, possession, or use of a gambling device” on a vessel outside the boundaries of a state, the amendment is inapplicable to a state with a statute prohibiting repair or use of a device on a voyage that begins or terminates in the state.50 The Revenue Act of 1951 assists states in enforcing their gambling statutes by levying a $50 gambler’s occupational tax on individuals accepting

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wagers who are required to register with the collector of internal revenue and penalizes those who fail to register and pay the tax.51 The collector forwards the registration information to the appropriate state officer as prima facie evidence that the individuals have violated the state’s antigambling laws. The tax was challenged as an infringement of the reserved powers of the states, but the U.S. Supreme Court in 1953 in United States v. Kahriger upheld the constitutionality of the tax, and rejected the argument that the tax denied the privilege against self-incrimination guaranteed by the Fifth Amendment to the U.S. Constitution.52 In 1968, however, the Court in Marchetti v. United States overruled its 1953 decision by opining “every portion of these reporting requirements had the direct and unmistakable consequence of incriminating petitioner; the application of the constitutional privilege to the entire registration procedure was in this instance neither ‘extreme’ nor ‘extravagant.’ ”53 Congress enacted the Unlawful Internet Gambling Enforcement Act of 2006 that criminalizes Internet gambling in violation of any applicable federal law or state law, but exempts such gambling in a state if permitted by state law provided the Interstate Horseracing Act of 1978, Professional and Amateur Sports Protection Act, Gambling Devices Transportation Act, or the Indian Gaming Act of 1988 are not violated. The U.S. Supreme Court in 1987 opined a state lacks authority to restrict unduly gaming on Indian lands.54 Congress responded to the decision by enacting the Indian Gaming Regulatory Act placing gambling on Indian reservations in three classes.55 Class I games, primarily social gaming for small prizes, are regulated by Indian tribes. Class II games—Bingo and Bingo-type games, and nonbanking card games—are regulated by tribes subject to limited oversight by the national Indian gaming commission. Class III games are all other types, including casinos, prohibited in the absence of a tribal-state compact. Only the governor is authorized to negotiate a compact with a tribe and a compact typically provides for the sharing of the profits of gaming by the state and the tribe. In Seminole Tribe of Florida v. Florida, the U.S. Supreme Court in 1996 invalidated a section in the 1988 act authorizing a tribe to sue a state in the U.S. district court if the governor did not negotiate in good faith a tribal-state compact regulating gambling by opining that such a suit is blocked by the Eleventh Amendment to the U.S. Constitution.56 The Professional and Amateur Sports Protection Act of 1992 forbids “a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographical references or otherwise) on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one

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or more performances of such athletes in such games.”57 The act contains what amounts to a devolution of power in the form of a grandfather clause stipulating the prohibition does not apply to the named sports gambling activities if they were in operation during specified dates.58 Congress enacted the Violent Crime Control and Law Enforcement Act of 1994 containing an amendment to its anti-lottery statutes allowing interstate transportation of lottery tickets provided the business is permitted under an agreement between the concerned sister states.59 The Coast Guard Authorization Act of 1996 contains two exceptions to preemption: (1) An amendment to the Johnson Act of 1951 grants Indiana jurisdiction over the “repair, transport, possession, or use of a gambling device on a vessel on a voyage that begins in . . . Indiana and does not leave the territorial waters of that State . . . ,” and (2) a second amendment devolves power to Alaska to forbid “the use of a gambling device on a vessel while it is docked or anchored or while it is operating within 3 nautical miles of a port at which it is scheduled to call.”60 Low-Level Radioactive Wastes The Low-Level Radioactive Waste Policy Act of 1980 devolves responsibility for disposal of such wastes to the states.61 The statute encourages states to enter into interstate low-level radioactive waste compacts by granting consent in advance to such compacts. Forty-four states have entered into ten compacts with renewable five-year congressional consent. Minimum Standards Preemption Congress in 1965 concluded that major regional problems could not be solved by state and local governmental actions encouraged by congressional conditional grants-in-aid and that a new problem-solving approach was necessary.62 States were reluctant to initiate actions to solve environmental problems with spillover costs affecting sister states and/or other nations for fear establishment and enforcement of stringent standards would drive industrial plants out of the state and/or discourage industrial firms from locating plants in the state. Not surprisingly, states inherently act in a mercantilist manner if free of national restraints in order to protect their companies, thereby maintaining and possibly increasing employment opportunities for their citizens. The new problem-solving method is termed minimum standards preemption and also can be labeled contingent complete preemption because the failure of a state to comply with an act of this type results in the removal of all regulatory power in the concerned field from the state. To continue to

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exercise regulatory authority under a minimum preemption statute, a state must submit a plan containing standards at least as stringent as national ones to the appropriate federal agency for approval and demonstrate the state possesses qualified enforcement personnel and equipment. Upon approving a plan, the agency devolves enforcement “regulatory primacy” to the state; that is, only the state inspects and enforces its standards and the role of the agency is to monitor the performance of the state. In other words, a minimum standards state law supersedes the corresponding national law if the state standards are equal to or higher than the national ones. If a state fails to submit an acceptable plan or returns “regulatory primacy” to the agency, the latter assumes responsibility for enforcing national regulations in the state. Congress to date has enacted six minimum standards acts: Water Quality Act of 1965 (now Clean Water Act), Air Quality Act of 1967 (now Clean Air Act), Safe Drinking Water Act of 1974, Surface Mining Control and Reclamation Act of 1977, Junk Fax Prevention Act of 2005, and Secure and Fair Enforcement for Mortgage Licensing Act of 2008.63 In 1990, Congress enacted the Energy Policy and Conservation Act Amendments of 2000 devolving authority to Alaska to exercise jurisdiction over small hydroelectric projects provided the state has a regulatory program protecting “the public interest, the purposes listed in paragraph (2), and the environment to the same extent provided by licensing and regulations by the commission [Federal Energy Commission].”64 More Stringent State Standards This type of devolution of powers differs from devolution under minimum standards preemption acts in that there is no requirement that a state must submit its standards to a federal agency for approval before the standards become effective. The National Traffic and Motor Vehicle Safety Act of 1966 completely preempts the field with one exception: a state or local government is authorized to establish “a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable federal standards.”65 The Federal Railroad Safety Act of 1970 specifically authorizes states to enact laws and/or promulgate regulations, rules, orders, and standards relative to railroad safety that are more stringent than the counterpart federal ones “when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any federal law, rule, regulation, order, or standards, and when not creating an undue burden on interstate commerce.”66

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Congress employed slightly different wording in the Occupational Safety and Health Act of 1970: “Nothing in this Act shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issues with respect to which no [federal] standard is in effect.”67 The Toxic Substances Control Act of 1976 specifically devolves authority to states and their political subdivisions to continue to regulate chemical substances or mixtures until the U.S. Environmental Protection Agency (EPA) administrator promulgates a rule or issues an order applicable to a substance or mixture designed to protect public health.68 The act also permits a degree of state regulatory flexibility subsequent to the issuance of a rule or order by the administrator by stipulating that the administrator, upon the application of a state or a political subdivision, may promulgate a rule exempting a chemical substance or mixture from the federal requirements if the subnational requirements provide a higher degree of protection against injury to public health or the environment than the federal requirements and do not “unduly burden interstate commerce.”69 The Natural Gas Policy Act of 1978 stipulates that “nothing in this act shall affect the authority of any State to establish or enforce any maximum lawful price for the first sale of natural gas produced in such States which does not exceed the applicable maximum lawful price, if any, under title I of this act.”70 A similar provision is contained in the Port and Tanker Safety Act of 1978: “[N]othing contained in this section, with respect to structures, prohibits a State or political subdivisions thereof from prescribing higher safety equipment requirements or safety standards than those which may be prescribed by regulations hereunder.”71 The Oil Pollution Act of 1990 authorizes states to impose additional liability or requirements with respect to discharges of oil or other pollutants into the waters of the states or removal activities connected with such a discharge.72 Authority is devolved to states by the Telephone Consumer Protection Act of 1991 to impose, compared to federal standards, “more restrictive intrastate requirements or regulations” pertaining to the use of electronic devices to send unsolicited advertisements, automatic telephone dialing systems, or artificial or prerecorded voice messages, and telephone solicitations.73 The Family and Medical Leave Act of 1993, a preemption statute, allows subnational legislative bodies to supersede provisions of the act if their laws “provide greater family or medical leave rights than the rights established under this Act.”74 Congress enacted in the same year the Armored Car Industry Reciprocity Act mandating each state to honor the weapons licenses issued by sister states to armored car crew members, but adding that the act supersedes a

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provision of a state or local law only to the extent it is inconsistent with the act.75 The Gramm-Leach-Bliley Financial Modernization Act of 1999 is a major preemption statute, but contains a section exempting from preemption state laws containing provisions affording greater protection than the act against the disclosure of nonpublic personal information by financial institutions.76 The FCC is required by the Do-Not-Call Implementation Act of 2003 to promulgate a final rule within 180 days. The rule was promulgated on June 26, 2003, and does not preempt more restrictive state do-not-call laws governing intrastate telemarketing.77 The Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 devolves to states authority to establish more stringent procedures for the conduct of background checks for drivers hauling hazardous materials provided there is a state appeals process similar to the federal one.78 This preemption act is the first one establishing minimum procedural standards. Subnational governments are permitted by the Patient Safety and Quality Improvement Act of 2005 to enact laws providing “greater privilege or confidentiality protections than the privilege and confidentiality protections provided by the act.”79 The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users of 2005 empowers a state to establish more stringent procedures than federal ones for a hazardous materials endorsement to a commercial driver’s license provided the state has an appeals process similar to the federal one.80 Property Appraisal Congress enhanced state regulatory powers by enacting the Financial Institutions, Reform, Recovery, and Enforcement Act of 1989 stipulating all appraisals of properties involving federal government transactions—including those of the Federal Deposit Insurance Corporation, Federal National Mortgage Association, Federal Home Loan Corporation, and federally chartered banks—must be made by state-licensed or state-certified appraisers.81 Quarantines In addition, Congress enacted many statutes, including early ones, directing federal officers to cooperate with state officers. A 1796 statute, relating to foreign and interstate marine commerce, authorizes the president to direct fort commanders and revenue officers to cooperate with state officers in the

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enforcement of quarantine and health laws.82 The act was amended in 1799 to grant authority to the secretary of the treasury to direct federal officers to cooperate with state officers in enforcement of these laws.83 Congress in 1878 enacted a statute providing vessels carrying passengers with a contagious disease may enter into ports only in accordance with the quarantine laws of the several states.84 To prevent the spread of yellow fever, the Texas health officer on March 1, 1899, quarantined the Gulf of Mexico coast and the Rio Grande River against all persons and articles coming from places infected by yellow fever. New Orleans on August 31, 1899, was declared officially to have a case of yellow fever. In consequence, the Texas health officer placed an embargo on interstate commerce between the city and Texas. Six days later, the officer allowed the U.S. Post Office Department to deliver the mail, and persons and their baggage to enter the state after ten days in a quarantine detention camp and fumigation of their baggage. The Louisiana governor sought leave to file in the U.S. Supreme Court a bill of complaint in equity against Texas, her governor, and her health officer alleging the City of New Orleans and its residents engaged in interstate commerce were injured by the quarantine. Referring also to a similar 1897 Texas-imposed quarantine, Louisiana explained the two embargoes resulted in a decrease from 31 percent to 15 percent of the Texas cotton crop exported through the Port of New Orleans with traffic diverted to the Port of Galveston, Texas. The Court invoked its original jurisdiction and reviewed briefly Article IX of the Articles of Confederation and Perpetual Union stipulating that Congress would be “the last resort on appeals in all disputes” between states, and Section 2 of Article III of the U.S. Constitution defining the judicial power of the United States. The gravemen of Louisiana’s complaint was that Texas intentionally was interdicting interstate commerce with Louisiana by imposing embargo rules and regulations more stringent than necessitated by the exigency, but it did not aver the Texas quarantine law was invalid. The Court concluded in 1900 that the bill of complaint “does not set up facts which show that the State of Texas has so authorized or confirmed the alleged action of her Health Officer as to make it her own, or that which it necessarily follows that the two states are in controversy with the meaning of the Constitution.”85 The Court sustained the Texas demurrer and dismissed the bill of complaint. Justice John M. Harlan wrote a concurring opinion: But I am of opinion that the State of Louisiana, in its sovereign or corporate capacity, cannot bring any action in this court on account of the matters set forth in its bill. The case involves no property interest of that state. Nor is Louisiana charged with

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any duty, nor has it any power, to regulate interstate commerce. Congress alone has authority in that respect. When the Constitution gave this court jurisdiction of controversies between states, it did not thereby authorize a state to bring another state to the bar of this court for the purpose of testing the constitutionality of local statutes or regulations that do not affect the property or the powers of the complaining state in its sovereign or corporate capacity, but which at most affect only the rights of individual citizens or corporation engaged in interstate commerce.86 He explained Louisiana citizens may seek, in an appropriate court, judicial protection of their property and/or rights affected adversely by statutes or administrative actions in a sister state. California filed a similar motion in the U.S. Supreme Court seeking permission to file a bill of complaint in equity against Texas’ quarantine on California agricultural products to prevent damage that could be caused by the Mediterranean fruit fly. This controversy was mooted in 1981 by the discontinuance of the quarantine. The Plant Quarantine Act of 1912 authorizes states to quarantine the shipment of diseased or infected plants not subject to a federal quarantine.87 Savings Clauses Congress enacted nine types of savings clauses with different wording but the same intent of preserving a state power. Declaration of Intent Not to Preempt Congress in 1948 enacted a statute criminalizing embezzling, stealing, or unlawfully taking property from a pipeline system, railroad car, motor truck, trailer, or other vehicle moving in interstate or foreign commerce, or a storage facility, and the receipt of stolen goods.88 The act specifically declares: “Nothing in this section shall be construed as indicating intent on the part of Congress to occupy the field . . . to the exclusion of State laws on the same subject matter. . . .”89 An identical clause is contained in the section on regulation of explosives of the Organized Crime Control Act of 1970.90 Direct and Positive Conflict Provision In exercising a delegated regulatory power, Congress often includes a section in a statute stipulating a state law on the same subject is valid unless there is a direct and positive conflict between the two laws, in which event the

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supremacy of the law clause of the U.S. Constitution provides for the prevalence of the national law. Such a provision first was included the Corrupt Practices Act of 1911 and provides the act “shall not be construed to annul or violate the laws of any State, not directly in conflict herewith, relating to the nomination or election of candidates for offices herein named, or to exempt any such candidate from complying with such State laws.”91 The Gun Control Act of 1968 similarly stresses: “No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two can not be reconciled or consistently stand together.”92 An almost identical provision is included in the Drug Abuse Control Amendments of 1965.93 The Fastener Quality Act of 1990 contains a conventional exemption provision stipulating the act “shall not be construed to preempt any rights or causes of action that any buyer may have with respect to any seller of fasteners under the law of any State, except to the extent that the provisions of this Act are in conflict with such State law.”94 Inconsistency Provision The Civil Rights Act of 1964 declares: “Nothing in this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of state laws on the same subject matter, nor shall any provisions of this Act be construed as invalidating any provision of state law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.”95 A second 1964 act made it a federal crime for an individual to attempt or conspire to influence a sporting contest by bribery, but includes a saving clause explaining the act is not to be construed as congressional intent to exclude state laws on the same subject.96 The Truth in Lending Act of 1968 stipulates: “This title does not annul, alter, or affect, or exempt any creditor from complying with, the laws of any State relating to the disclosure of information in connection with credit transactions, except to the extent that those laws are inconsistent with the provisions of this title or regulations thereunder, and then only to the extent of the inconsistency.”97 The act also contains a chapter on extortionate credit transactions including a section containing a second exemption: “This chapter does not preempt any field of law with respect to which State legislation would be permissible in the absence of this chapter.”98

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The Fair Credit Billing Act of 1974 requires any person subject to the act to comply with state laws “with respect to credit billing practices, except to the extent that those laws are inconsistent with any provision of this chapter, and then only to the extent of the inconsistency.”99 The Telephone Operator Consumer Services Improvement Act of 1990 applies to aggregators who make telephones available to the public for interstate calls and provides the requirements in the act do “not apply to an aggregator in any case in which State law or State regulation requires the aggregator to take actions that are substantially the same as those required in paragraph (1) (A).”100 The Federal Deposit Insurance Improvement Act of 1991 contains the Truth in Savings Act of 1991 excluding from preemption state laws pertaining to the required “disclosure of yields payable or terms for accounts to the extent such” law “requires the disclosure of such yields or terms for accounts, except to the extent that the laws are inconsistent with the provisions of this Act, and then only to the extent of the inconsistency.”101 In 1991, Congress enacted the Department of Transportation and Related Agencies Appropriation Act for Fiscal Year 1992 containing the Omnibus Transportation Employee Testing Act of 1991 enhancing motor carrier safety that includes the following stipulation: No State or local government shall adopt or have in effect any law, rule, regulation, ordinance, standards, or order that is inconsistent with the regulations issued under this section, except that the regulations . . . shall not be construed to preempt provisions of State criminal laws which impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to commercial motor vehicle employees, or to the general public.102 In the same year, Congress enacted the Civil Space Employee Testing Act preempting state and/or local government laws and regulations inconsistent with regulations promulgated under the authority of the act.103 The Telephone Disclosure and Dispute Resolution Act of 1992 regulates the pay-per-call industry, requires providers to comply with state and local government statutes and regulations, and empowers states to enact and enforce supplementary oversight and regulatory systems or procedures provided they “govern intrastate services and do not significantly impede the enforcement of this section or other Federal statutes.”104 The Omnibus Consolidated Appropriations Act of 1997, signed in 1996, contains the Credit Repair Organizations Act of 1996, which stipulates the

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act does “not annul, alter, affect, or exempt any person . . . from complying with any law of any State except to the extent that such law is inconsistent with any provision of this title, and then only to the extent of the inconsistency.”105 A savings clause in the Gramm-Leach-Bliley Financial Modernization Act of 1999 provides that any state insurance law or regulation pertaining to unfair trade practices of consumer protection does not have to be altered to satisfy the uniformity or reciprocity required by the act except to the extent the law or regulation is inconsistent with a specific requirement.106 No Federal Standard in Effect The Occupational Safety and Health Act of 1970 does not prevent “any state agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no standard is in effect under section 6.”107 Special Local Needs A state is authorized by the Federal Environmental Pesticide Act of 1972 to register “pesticides formulated for distribution and use within that State to meet special local needs if that State is certified by the [EPA] administrator as capable of exercising adequate controls to assure that such registration will be in accord with the purposes of this act and if registration for such use has not previously been denied, disapproved, or cancelled by the Administrator.”108 Until enactment of this act, states lacked authority to authorize pesticide uses as the Federal Insecticide, Fungicide, and Rodenticide Act of 1947 was a complete field preemption statute.109 Medical Exception The Newborns’ and Mothers’ Health Protection Act of 1996 regulates group health insurance plans by mandating standards relative to benefits for mothers and newborns, but also contains exceptions for health insurance coverage. Excepted are states with a statute (1) requiring “at least a 48-hour hospital length of stay following a normal vaginal delivery and at least a 96-hour hospital length of stay following a cesarean section” or (2) providing coverage “for maternity and pediatric care in accordance with guidelines established by the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, or other established professional medical association,” or (3) the attending physician, in consultation with the mother, determines her hospital length of stay.110

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Uniform State Law Provision In 2000, Congress enacted the Electronic Signatures in Global and National Commerce Act preempting the electronic signatures laws and regulations of forty-four states, but providing an exception if a state legislature enacts “the Uniform Electronic Transactions Act as approved and recommended for enactment in all the states by the National Conference of Commissioners on Uniform State Laws in 1999.”111 If a state legislature in enacting the uniform law includes an amendment, it is preempted to the extent it is inconsistent with the congressional act. The semi-sovereign status of states is respected by the act’s exceptions for their actions taken as market participants by stipulating the act “shall not apply to the statutes, regulations, or other rules of law governing procurement by any State or any agency or instrumentality thereof.”112 Other Specified Exceptions The Professional and Amateur Sports Protection Act of 1992 forbids a governmental body to advertise, license, promote, or sponsor any type of gambling on competitive games in which amateur and professional athletes participate, but contains a grandfather’s clause providing the act is not applicable to sports gambling activities in operations during specified dates.113 The Coast Guard Authorization Act of 1998 provides it is not to be interpreted to affect adversely regulatory and enforcement powers granted to states by the Clean Water Act and Coastal Zone Management Act of 1972. The Commodity Futures Modernization Act of 2000 added a savings clause to the Securities Exchange Act of 1934 as amended by stipulating: “No provision of State law regarding the offer, sale, or distribution of securities shall apply to any transaction in a security futures product, except that the sentence shall not be construed as limiting any State antifraud law of general applicability.”114 The Help America Vote Act of 2002 amends the National Voter Registration Act of 1993 to allow a state to remove a voter from the official list of eligible voters if the voter has not notified the applicable registrar of a change of address or has not voted in two or more consecutive general elections for federal office.115 The Real Interstate Driver Equity Act of 2002 exempts from preemption (1) state and local government taxicab regulation, (2) an airport, bus, or train operator providing “preferential access or facilities to one or more providers of pre-arranged ground transportation service,” and (3) state or local government required pre-licensing drug testing or a criminal background investigation of

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“any individual operating a vehicle providing prearranged ground transportation service originating in the state or political subdivision . . .”116 Exempted from the provisions of the Captive Wildlife Safety Act of 2003 is “a state college, university, or agency, State-licensed wildlife rehabilitator, or State-licensed veterinarian.”117 The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 contains a savings clause exempting (1) “a state or local government law or rule prohibiting falsity or deception in any portion of a commercial electronic message or information attached thereto,” (2) state statutes “not specific to electronic mail, including State trespass, contract, or tort law,” and (3) “other State laws relating to acts of fraud or computer crime.”118 States are forbidden by the Consolidated Appropriations Act for Fiscal Year 2004 to enact or promulgate rules curbing emissions from nonroad spark-ignition small engines under fifty horsepower.119 A grandfather clause exempts California and eight southeastern states with regulations in effect on September 1, 2003, from preemption. Unusually Worded Provisions The Consumer Credit Protection Act of 1968 contains the following savings clause: “This chapter does not preempt any field of law with respect to which State legislation would be permissible in the absence of this chapter. No law of any State which would be valid in the absence of this chapter may be held invalid or inapplicable by virtue of the existence of this chapter, and no officer, agency, or instrumentality of any State may be deprived by virtue of this chapter of any jurisdiction over any offense over which it would have jurisdiction in the absence of this chapter.”120 In other words, the act de facto is not a preemption act. A savings clause with significantly different wording appears in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990: All actions taken by Federal agencies in implementing the provisions of section 1202 shall be consistent with all applicable Federal, State, and local environmental laws. Nothing in this title shall affect the authority of any State or political subdivision thereof to adopt or enforce control measures for aquatic nuisance species, or diminish or affect the jurisdiction of any State over species of fish and wildlife. Compliance with the control and eradication measures of any State or political subdivisions thereof regarding aquatic nuisance species shall not relieve any person of the obligation to comply with the provisions of this subtitle.121

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Opt-In and Opt-Out Provisions Congress enacted the Johnson Act of 1951 declaring it “unlawful knowingly to transport any gambling device to any place in a State from any place outside of such State . . . ,” but stipulating the act does not apply to a state that enacted a law providing for the exemption of the state from the act.122 The constitutionality of the act was challenged on the ground the exemption was an unconstitutional devolution of the interstate commerce power of Congress to states. The U.S. Supreme Court in Nilva v. United States upheld the constitutionality of the statute in 1954.123 The Department of Transportation Appropriations Act of 1991 mandates state legislatures to enact a statute requiring revocation of the operator’s license of a motorist convicted of a drug-related crime. State sovereignty is respected by allowing each state to opt out of the mandate by means of a legislative resolution adopted in opposition to the requirement and a letter from the governor to the U.S. Secretary of Transportation expressing concurrence with the resolution.124 Congress assumed no state legislature would dare to incur the wrath of the public by opting out of the requirement. Many states nevertheless opted out, and Congress included in a 1991 act a stipulation the requirement should “be treated as having not been enacted into law.125 Congress, however, changed its mind and reinserted the requirement in the Transportation Equity Act for the 21st Century of 1998.126 The long history of the dual banking system is respected by the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, which has several exemptions and savings sections excluding state statutes and regulations from preemption.127 The act also contains an opt-in section permitting a state legislature to enact a law permitting interstate branching through de novo branches provided the law “applies equally to all banks, and expressly permits all out-of-state banks to establish de novo branches.”128 In addition, the act has an opt-out section permitting a state legislature to enact a law prohibiting interstate branching within the state otherwise authorized by the act.129 The opt-out section has been employed only by Montana and Texas.130 A major study of the act concluded deregulation “allowed banks to offer better services to their customers at lower prices.”131 Rulings Precluding Preemption Congress enacted two preemption statutes lacking explicit devolution provisions but authorizing an administrative or judicial determination precluding

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preemption. The Voting Rights Act of 1965 is applicable to a state or a political subdivision if two conditions are met: A voting device such as a literacy test had been employed in 1964 and less than 50 percent of the electorate cast ballots in the preceding presidential election.132 Whereas this act was designed to prevent abridgment of the voting rights of citizens only because of race or color, the act’s 1975 amendments broadened the coverage to include language minorities defined as “persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage.”133 The language minorities are provided protection of their voting rights if in excess of 5 percent of the citizens of voting age in a state or political subdivision are members of one language group and less than 50 percent of all citizens of voting age cast ballots in the 1972 presidential election. The act also is applied to a subnational government if in excess of 5 percent of the citizens of voting age are members of one language minority and the illiteracy rate of the group exceeds the national illiteracy rate. A state or local government covered by the act may make no change in its election system unless the U.S. Attorney General, within sixty days of submission of a proposed change to him or her, fails to register an objection or the U.S. District Court for the District of Columbia issues a declaratory judgment that the proposed change would not abridge the right to vote of citizens protected by the act.134 The Transportation Safety Act of 1974 authorizes only an administrative ruling regarding whether preemption applies to a subnational government. The materials transportation bureau of the department of transportation can issue an administrative ruling addressing the question whether a state law or rule is precluded by preemption.135 To avoid preemption, nonfederal requirements must be consistent with, or afford a greater level of protection than, federal requirements and not unreasonably burden interstate commerce. The bureau introduced consistency rulings in 1984 by writing that Congress in the Hazardous Materials Transportation Safety Act (HMTSA) in effect intended to establish a type of Imperium in Imperio (empire within an empire or dual federal system): Despite the dominant role that Congress contemplated for departmental standards, there are certain aspects of hazardous material transportation that are not amenable to exclusive nationwide regulation. One example is traffic control. Although the Federal Government can regulate in order to establish certain national standards promoting the safe, smooth flow of highway traffic, maintaining this in the face of short-term disruptions is necessarily a predominantly local responsibility. Another aspect of hazardous materials transportation that is not amenable to effective nationwide regulation is the problem of safety hazards

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which are peculiar to a local area. To the extent that nationwide regulations do not adequately address an identified safety hazard because of unique local conditions, State or local governments can regulate narrowly for the purpose of eliminating or reducing the hazard. The mere claim of uniqueness, however, is insufficient to insulate a non-Federal requirement from the preemption provisions of HMTSA.136 The Nuclear Assurance Corporation, for example, sought an administrative ruling relative to whether the prohibition of the transportation of radioactive materials on the facilities of the New York State Thruway Authority is inconsistent with and thereby preempted by HMTSA. The key question was whether the corporation could comply with both the authority’s rules and federal rules. The bureau in its administrative ruling held the authority’s “rule is not based upon any finding that transportation of highway route controlled quantity radioactive materials over the Thruway would present an unacceptable safety risk,” and hence the “rule thus stands as a repudiation of the Department’s rule of national applicability on highway routing of radioactive materials.”137 Reverse Preemption The Coastal Zone Management Act of 1972 (1) authorizes grants-in-aid to states for the development of a land and water resources management program for coastal areas and its submission to the secretary of commerce for approval, (2) requires federal agencies to ensure their development projects in coastal zones are consistent “to the maximum extent practicable” with federally approved state management programs, and (3) prohibits federal agencies to issue licenses or permits to a private applicant to undertake “an activity affecting land or water uses in the coastal zone” if the concerned state objects to the application.138 The secretary can override a state’s objection to the issuance of a license or permit by a federal agency if, upon appeal, the secretary determines “the activity is consistent with the objectives of this title or is otherwise in the interest of national security.”139 The preemptive Coast Guard Authorization Act of 1998 also contains a section reinforcing the 1972 act: (a) Nothing in this title shall be interpreted to adversely affect State regulatory or enforcement power which has been granted to any State through the Clean Water Act or Coastal Zone Management Act of 1972.

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(b) Nothing in this title shall be interpreted to expand the regulatory or enforcement power of the Federal Government which has been delegated to any State through the Clean Water Act or Coastal Zone Management Act of 1972.140

Congressionally Powers Devolved to Governors Seventeen congressional preemption statutes, implementing administrative rules and regulations, and one presidential executive order devolve national powers to governors not granted to them by their respective state constitution or statutes, thereby altering the balance of power between the governor and the state legislature. A governor of an eastern state wrote to the author in 1986 that “I don’t think many students of federalism understand how important these changes are, not only in an intergovernmental sense, but to Governors themselves in the expansion of their responsibilities as chief executive within their respective States.” Submission of a Plan This type is a specific statutory authorization for a governor to submit a plan to a federal department or agency. The Federal Environmental Pesticide Control Act of 1972 grants authority to the governor to submit a plan to the EPA administrator for state assumption of responsibility for certification of pesticides applicators.141 The Clean Air Act Amendments of 1977 direct the administrator, who is required to review each state implementation plan within eighteen months of its submission, to consult the governor prior to mandating a revision of the plan.142 Certification of State Plans Congress in various acts authorizes state governors to certify their respective state plans. For example, the Federal Water Pollution Control Act Amendments of 1972 grants only the governor or his/her designee power annually to certify areawide waste water treatment management plans if the state desires to retain regulatory primacy.143 Certification of State Compliance Certification of state compliance with a national requirement is a third type of power granted by congressional devolution statutes to governors. The Emergency Highway Energy Conservation Act of 1974 required states to

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establish a maximum speed limit of fifty-five miles per hour as a condition for the receipt of federal highway grants-in-aid and directed the federal highway administrator to promulgate implementing regulations stipulating “each Governor shall submit to the Federal Highway Administrator . . . a statement that the State” is complying with the nationally established maximum speed limit.144 Congress in 1987 overrode President Ronald Reagan’s veto of the Surface Transportation and Relocation Assistance Act of 1987, which authorizes states to increase the speed limit to a maximum of sixty-five miles per hour on rural interstate highways without suffering the loss of federal highway grants-in-aid.145 Issuance of Temporary Permits The Safe Drinking Water Act of 1974 authorizes the EPA administrator, upon the application of a governor, to issue “one or more temporary permits each of which is applicable to a particular injection well and to the underground injection of a particular fluid.”146 Waiver of a Federal Requirement Governors have been authorized to request the waiver of the federal single agency requirement. Congress in establishing many new grant-in-aid programs in the 1960s required that a single state agency be responsible for administration of each program in order to establish responsibility and avoid programmatic duplication. Many governors protested that states lost the ability to reorganize their respective executive branch to ensure the most economical, effective, and economical delivery of services to citizens. Florida challenged the constitutionality of the requirement, but the U.S. Supreme Court upheld its constitutionality in 1979.147 The Federal Metal and Nonmetallic Mine Safety Act of 1966, repealed in 1977, allowed the secretary of labor “upon request of the Governor, to waive the single state agency provision hereof and approve another state administrative structure or arrangement if the Secretary determines that the objectives of this Act will not be endangered by the use of such other state structure or arrangement.”148 Assumption of Functional Responsibility Another type is a preemption statute provision empowering the governor to request state assumption of responsibility for a function. Such a provision is contained in the Wholesome Meat Act of 1967 and the Poultry Products Inspection Act of 1968.149

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Designation of a State Agency The seventh type is illustrated by the National Health Planning and Resources Development Act of 1974, which grants each governor authority to designate a state department or agency as the state health planning and development agency for a preempted function.150 Similar provisions in the Federal Water Pollution Control Act Amendments of 1972 authorize governors to identify areas with “substantial water quality control problems” and designate “a single representative organization, including elected officials from local governments or their designees, capable of developing effective areawide waste treatment management plans for such” areas; and “one or more waste treatment management agencies . . . for each area.”151 The Clean Air Act Amendments of 1977 also empowers governors, after consultation with elected local government officers in the affected area, to designate a state agency to prepare a remedial plan.152 In addition, many conditional grants-in-aid programs also authorize the governor to designate a state department or agency to be responsible for each such program. The Surface Transportation Assistance Act of 1978, for example, grants the governor authority to designate metropolitan planning organizations.153 Appointment of Council Members A preemption statute may authorize governors to appoint members of a state council. The National Health Planning and Resources Development Act of 1974, for example, provides that the members of the statewide health coordinating council are to be appointed by the governor.154 Program Administration The Highway Safety Act of 1966 stipulates: “The Secretary [of Transportation] shall not approve any state highway safety program under this section which does not provide that the Governor of the State shall be responsible for the administration of the program.”155 This authorization precludes the state legislature from placing responsibility for state highway safety programs in an agency independent of the governor. Governor Nelson A. Rockefeller of New York in 1973 used this authority to establish by executive order the interdepartmental Traffic Safety Commission as the state agency in charge of state highway safety programs.156 Gasoline Allocation A 1979 executive order issued by President James E. Carter in 1979 grants authority to each governor “to establish a system of end-use allo-

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cation for motor gasoline,” a very important power when gasoline is in short supply.157 Nuclear Waste Facility Site Veto The Nuclear Waste Policy Act of 1984 directs the secretary of energy to select a site for the construction of a high-level radioactive waste facility, but the site may be vetoed either by the concerned state governor or the state legislature.158 Congress, however, may override the state veto and in 2002 overrode the Nevada governor’s veto of the Yucca Mountain site.159 Large Truck Highway Safety The Tandem Truck Safety Act of 1984 authorizes each governor, after consulting concerned local governments, (1) to notify the secretary of transportation that specified segments of the interstate highway system in the governor’s state cannot safely accommodate motor vehicles of the length permitted by the Surface Transportation Assistance Act of 1982 or 102-inch vehicles other than buses, and (2) to request the secretary to prohibit travel by these vehicles on the specified segments.160 Air Pollution Abatement The most important type is the devolution of air pollution abatement powers by preemption statutes to the governor. EPA was forced by court decisions in 1972 and 1973 to promulgate regulations forbidding states to permit significant deterioration of existing air quality.161 To implement the courts’ decisions, the agency in 1974 promulgated final rules and regulations for prevention of such deterioration by establishing three classes of air zones.162 New pollution, measured in terms of sulfur dioxide and total suspended particulate matter, is not allowed in class I areas; a limited amount of development is allowed in class II areas provided such development would not cause “significant deterioration of air quality“; and deterioration up to secondary standards is permitted in class III areas. Primary ambient air quality standards are national ones designed to protect the health of susceptible citizens. Secondary standards generally are more stringent and are designed to prevent adverse environmental effects such as damage to animals, climate, vegetation, and water quality. The 1977 amendments to the Clean Air Act added a new “Part C: Prevention of Significant Deterioration of Air Quality” containing provisions similar to EPA regulations with one major exception: Pollutants in class III areas are limited to 50 percent of the amount allowed by secondary standards.163 Each state governor is allowed to redesignate areas from Class I

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to Class II with certain specified exceptions, principally national parks and wilderness areas, provided the redesignation has been approved. After consultation with the appropriate Committees of the Legislature if it is in session or with the leadership of the Legislature if it is not in session (unless State law provides that such redesignation must be specifically approved by state legislation) and if general purpose units of local governments representing a majority of the residents of the area so redesignated enact legislation (including for such units of local governments resolutions where appropriate) concurring in the state redesignation; (b) such redesignation will not cause, or contribute to, concentrations of any air pollutant which exceed any maximum allowable increase or maximum allowable concentration permitted under the classification of any other area; and such redesignation otherwise meets the requirements of this part.164 The EPA administrator may invalidate a redesignation only if procedural requirements were not followed. In effect, redesignation allows a governor to balance the need for economic development with preservation of air quality provided pollutants emanating from new developments provided the pollutants do not exceed national standards. The Clean Air Act Amendments of 1990 direct the governor of a state with regulatory primacy to submit to the EPA administrator “a list of areas (or portions thereof) in the State designated as nonattainment, attainment, or unclassifiable . . .”165 The governor, at any time, may submit a revised list to the administrator. An entire metropolitan statistical area or consolidated metropolitan statistical area is designated as a nonattainment area if the ozone or carbon monoxide air quality in any sub-area is classified as a serious, severe, or extreme. If the governor can demonstrate to the administrator that sources of air pollution in “a portion of a metropolitan statistical area or consolidated metropolitan statistical area” do not contribute significantly to the violation of air quality standards, the administrator is directed to grant the application of the governor for exclusion of the portion from the area designated nonattainment.166 The Clean Air Act Amendments of 1977 grant authority to a governor, after a public hearing is held, to promulgate rules providing “that for purposes of determining compliance with the maximum allowable increases in ambient concentrations of an air pollutant,” the concentration of the pollutant listed below will not be considered: (A) [C]oncentrations of such pollutant attributable to the increase in emissions from stationary sources which have

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been converted from the use of petroleum products, or natural gas, or both, by reason of an order which is in effect under provisions of section 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any subsequent legislation which supersedes such provisions) over emissions from such sources before the effective date of such order. (B)

The concentrations of such pollutant attributable to the increase in emissions from stationary sources which have been converted from using natural gas by reasons of a natural gas curtailment pursuant to a natural gas curtailment plan in effect pursuant to the Federal Power Act over emissions from such sources before the effective date of such plan.

(C) Concentrations of particulate matter attributable to the increase in emissions from construction or other temporary emission-related activities, and (D) The increase in concentrations attributable to new sources outside the United States over the concentrations attributable to existing sources . . . included in the baseline concentration determined in accordance with section 169(4).167 In addition, a governor also is authorized by the amendments, subject to the agreement of the federal land manager, to grant a variance from the maximum allowable increase in sulfur dioxide by a proposed major emitting facility denied certification under the standard certification procedure for a Class I area if the owner or operator of the proposed facility can convince the governor, after a public hearing, a variance “will not adversely affect the air quality related values of the area (including visibility).”168 The EPA administrator also is directed to delete from a transportation control plan a requirement for the tolling of bridges upon the application of the governor of the concerned state.169 This provision was inserted in the amendments after intense lobbying by New York City and New York State officers. Governor Hugh L. Carey of New York on October 19, 1977, notified the administrator the requirement that East River bridges in New York City be tolled should be deleted from the transportation control plan, and the requirement was deleted.170 The amendments impact the coal industry, whose influence is detectable in the section authorizing the governor, “with the written consent of the President or his designee,” to “prohibit any such major fuel burning stationary sources (or class or category thereof) from using fuels other than locally or

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regionally available coal or coal derivatives to comply with implementation plan requirements.”171 Ozone Transport Commission The Clean Air Act Amendments of 1990 authorize a governor to petition the EPA administrator to establish a transport commission if “the interstate transport of air pollutants from one or more States contributes significantly to a violation of a national ambient air quality standard in one or more other States . . .”172 In response to a petition, the administrator established the ozone transport commission whose members are representatives of twelve northeastern states and the District of Columbia. The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 permits a governor to request the secretary of the interior to execute a joint enforcement agreement authorizing “the deputization and funding of State law enforcement officers with marine law enforcement responsibilities to perform” the secretary’s enforcement duties under the act or any other marine resource act.173 National Guard Duty The John Warner National Defense Authorization Act for Fiscal Year 2007 devolves power to governors, with the consent of the secretary of defense, to “order a member of the National Guard to perform Active Guard and reserve duty” as defined by the act.174 Lowering of Flags The Army Specialist Joseph P. Micks Federal Flag Code Amendment Act of 2007 authorizes the governor of each state to order the lowering of the flag of the United States.175

Enforcement Powers Devolved to Attorneys General The U.S. attorney general and U.S. district attorneys historically brought lawsuits when necessary to enforce congressional statutes. According recognition to the desirability of state enforcement assistance, Congress in a number of complete preemption statutes devolved authority to state attorneys general to bring suits in court to enforce the statutes. The Federal Environmental Pesticide Control Act of 1972 authorizes the EPA administrator to enter into cooperative enforcement agreements with state attorneys general and to make grants to states to cover part of

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their enforcement costs.176 The Consumer Product Safety Improvement Act of 1990 amends the Hazardous Substances Act and the Flammable Fabrics Act to allow a state attorney general to bring a civil action for an injunction to enforce these acts.177 The Oil Pollution Act of 1990 authorizes a state to enforce on its navigable waters the federal requirements for evidence of financial responsibility.178 And the Nutrition Labeling and Education Act of 1990 empowers a state to bring proceedings for the civil enforcement or to restrain violations of specified section of the act “if the food that is the subject of the proceedings is located in the State.”179 The Telephone Consumer Protection Act of 1991 empowers a state attorney general to bring a civil action on behalf of state residents against any person violating the act and regulations promulgated under its authority.180 Congress enacted a partial preemption statute, the Telephone Disclosure and Dispute Resolution Act of 1992, devolving authority on a state attorney general to bring a civil action on behalf of his/her citizens in the U.S. district court to enforce compliance with rules and regulations promulgated under the act by the Federal Communications Commission.181 The Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994, a complete preemption act, authorizes each state, as parens patriae, to “bring a civil suit in an appropriate District Court of the United States to enjoin such telemarketing, to enforce compliance with such rule of the [federal communications] commission, to obtain damages, restitution, or other compensation on behalf of” its residents.182 The Capital Markets Efficiency Act of 1996 (contained in the National Securities Markets Improvement Act of 1996) devolves enforcement authority upon states: “Consistent with this section, the securities commission (or any other office performing like functions) of any State shall retain jurisdiction under the laws of such State to investigate and bring enforcement actions with respect to fraud or deceit, or unlawful conduct by a broker or dealer, in connection with securities or securities transactions.”183 Congress in 1996 enacted the Consumer Credit Reporting Reform Act devolving authority to each state attorney general to bring an action in the U.S. district court to enjoin a violation of the act, and also exempts from preemption any state law “relating to the prescreening of consumer reports” and other specified state laws in effect in 1996, including “section 54A(a) of chapter 93 of the Massachusetts Annotated Laws . . .”184 The Omnibus Consolidated Appropriations Act for Fiscal Year, enacted in 1996, amends the Fair Credit Reporting Act by allowing a state attorney general to bring an enforcement action against any person violating the act and to seek damages.185 The Children’s Online Privacy Protection Act of 1998 grants each state attorney general authority to bring a parens patriae civil suit in the U.S. district court if he or she believes “an interest of the residents of that state

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has been or is threatened, or adversely affected by the engagement of any person in a practice that violates any regulations of the commission [Federal Trade Commission].”186 The Twenty-First Amendment Enforcement Act of 2000 authorizes a state attorney general to bring a civil action for injunctive relief in the U.S. district court to restrain an individual believed to be violating a state law regulating the importation of intoxicating liquor into the state and to enforce compliance with the law.187 The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 authorizes attorneys general to bring a civil suit to protect their respective state residents who have been or are “threatened or adversely affected” by an individual who violates the act.188 The Junk Fax Prevention Act of 2005 similarly grants authority to state attorneys general to bring a civil suit in the U.S. district court to enjoin unsolicited messages.189

Limited Regulatory Authority Turn-Backs Four complete, and one partial, preemption statutes contain provisions authorizing the return of limited regulatory authority to states. The Atomic Energy Act of 1946 was amended in 1959 to authorize the former Atomic Energy Commission (now Nuclear Regulatory Commission) to enter into agreements with states allowing them to assume certain regulatory responsibilities.190 The agreement state program simply requires a state radiation control program be compatible with, and not necessarily identical to the commission’s regulatory program. In contrast, a minimum standards preemption statute assigns regulatory responsibility to states provided they adopt standards at least as strict as the federal standards and enforce them. The administrator of the federal grain inspection service is authorized by the U.S. Grain Standards Act of 1968 to devolve power to state agencies to perform official inspection and weighing.191 The Federal Railroad Safety Act of 1970 provides for a limited turn-back of regulatory authority allowing state inspection of railroad equipment and facilities in accordance with national standards.192 The Hazardous and Solid Waste Amendments of 1984 permit states to assume responsibility for EPA’s hazardous waste program that had been partially preempted by Congress in 1976.193 All states have assumed responsibility for the initial or basic program and many states have assumed responsibility for other parts of the program, such as land disposal restrictions.

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Cooperative Enforcement Congress enacted several statutes, in addition to ones devolving powers upon state attorneys general, providing for cooperative federal-state enforcement of preemption statutes. The U.S. Equal Employment Opportunity Commission is granted power by the Age Discrimination in Employment Amendments of 1986 to sign cooperative enforcement agreements with state and local government fair employment agencies.194 The Oil Pollution Act of 1990 empowers states to enforce on their respective navigable waters only “the requirements for evidence of financial responsibility” of the party responsible for a ship transporting oil as cargo or fuel.195 The Anti Car Theft Act of 1992, a complete preemption statute, directs the U.S. attorney general and U.S. attorneys “to work with State and local officials to investigate car thefts, including . . . armed carjacking . . .”196 Subnational government law enforcement officers are allowed by the Antiterrorism and Effective Death Penalty Act of 1996 to arrest an illegal alien or a person convicted of a felony in the United States who was deported or left the country after conviction subject to obtaining information from the Immigration and Naturalization Service on the status of any such person.197 The Coast Guard and Maritime Transportation Act of 2004 authorizes state and local government law enforcement officers to enforce state criminal laws by arresting persons for violating a federal security zone regulation.198 And the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 allows a governor to request the secretary of the interior for execution of a joint enforcement agreement authorizing “the deputization and funding of state law enforcement officers with marine law enforcement responsibilities to perform” the secretary’s law enforcement duties.199

Summary and Conclusions The enactment by Congress, as of June 1, 2009, of 609 preemption statutes removing regulatory powers completely or partially from states has not destroyed the federal system, as an imperium in imperio system remains in effect with states possessing important reserved powers not subject to formal congressional preemption and constitutional and congressional provisions excluding other specified state powers from preemption. Congressional employment of minimum environmental standards preemption, a type of devolution, encourages state legislatures to exercise their

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reserved regulatory powers with a degree of flexibility while meeting national minimum standards in lieu of losing such powers. This type of preemption avoids confusion regarding the plane of government responsible for the function since the grant of regulatory primacy to a state makes it solely responsible. Similarly, congressional authorization for states to establish standards more stringent than national standards without advanced federal approval makes the federal system a more flexible one by facilitating state action. Savings clauses in effect devolve national powers to states and ensure states may initiate a needed regulatory action to cope with a public problem. Congress also devolved powers upon governors, state attorneys general, and state administrative agencies. The significant powers devolved to governors alter the constitutional gubernatorial-legislative balance of power and authorization for attorneys general to bring a suit for enforcement of federal laws in the U.S. district court is a significant latent power. The above review of devolved powers reveals they make the federal system exceptionally complex. Unfortunately, Congress has failed to develop criteria for determining the powers to be devolved or the extent of devolution, and has not monitored on a continuing basis state exercise of these powers. Enactment of devolution statutes and preemption statutes occurs in a conceptual vacuum on an ad hoc basis in response to particular public problems. These statutes have created a democratic deficit by making it extremely difficult for citizens to determine which plane of government is responsible for a given function or subfunction, thereby hampering their ability to hold elected officers accountable. Citizen confusion is attributable in part to (1) numerous types of devolution such as savings clauses in complex lengthy regulatory statutes, (2) multiple preemption provisions, including separate acts, applicable to a variety of regulatory areas in a single appropriation act that is hundreds of pages in length, and (3) frequent congressional exercise of preemption powers sub silentio with respect to their reach, thereby necessitating judicial determination on a case-by-case basis of their effect (see chapter 6). The focus of chapter 3 is congressional facilitation of state criminal law enforcement.

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CHAPTER THREE

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tate erection of tax and other trade barriers against products of sister states under the Articles of Confederation and Perpetual Union was a major reason why delegates to the 1787 Philadelphia constitutional convention abandoned the Articles and included in the proposed U.S. Constitution authority for Congress to regulate commerce “among the several states.”1 Surprisingly, Congress did not exercise this power for nearly one hundred years and its failure to do so led to the term “the silence of Congress.”2 The silence was terminated with the enactment of An Act to Regulate Commerce of 1887 creating the Interstate Commerce Commission with authority to regulate railroad fares and tariffs.3 Within three years, Congress discovered it could utilize its interstate commerce power to facilitate state enforcement of their criminal laws. The first such act, The Wilson Act of 1890, stipulated that alcoholic beverages entering a state are subject to its police power, a broad regulatory power allowing state legislatures to regulate persons and property in order to promote and protect public health, public safety, public welfare, public morals, and public convenience.4 Congress over a period of years decided to use on a broad basis its interstate commerce and taxation regulatory powers to facilitate state enforcement of their state criminal laws. Not surprisingly, a number of civil rights advocates raised questions relative to the constitutionality of these congressional statutes. The national legislature also reinforces state efforts to solve major criminal problems by providing block and categorical grants-in-aid (see chapter 4) and by enacting acts supporting state programs such as the Federal Bureau of Investigation fingerprint service.5

Criminal Law Enforcement Facilitating Acts A full understanding of the value of the assistance provided by Congress to states necessitates a detailed listing of congressional criminal statutes 53

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designed to assist state and local government law enforcement. These statutes pertain to interstate transportation of (1) adulterated or misbranded foods and drugs, (2) alcoholic beverages, (3) alcoholic beverages and cigarette excise taxes, (4) animals, birds, fish, and plants, (5) bank robbery, (6) drunk driving, (7) firearms, (8) fraud, (9) gambling, (10) kidnapping, (11) money laundering, (12) morality, (13) narcotics, (14) protection of children, (15) sporting contests, (16) stalking of women, (17) stolen motor vehicles, and (18) stolen livestock and goods. A 1948 act has been of great assistance to state and local law enforcement efforts by making it a federal crime for a person to travel in interstate or foreign commerce to avoid (1) prosecution in a state, (2) giving testimony in a state criminal proceeding, or (3) “service of lawful process requiring attendance and the giving of testimony or the production of documentary evidence” before a state agency.6 The Uniform Law to Secure the Attendance of Witnesses from within or without a State in Criminal Proceedings, drafted by the national conference of commissioners on uniform state laws, is related to the second goal above. Forty-two state legislatures, including Florida, and the Puerto Rico legislature by 1959 had enacted the uniform law. The constitutionality of the Florida statute was challenged, the Florida Supreme Court affirmed the trial court’s judgment in favor of the plaintiff, and the U.S. Supreme Court reversed the decision in 1959 and opined: The manifold arrangements by which the Federal and State Governments collaborate constitute an extensive network of cooperative activities not formulated in the constitution but not offensive to any of its provisions or prohibitions. . . . To hold that these and other arrangements are beyond the power of the States and Federal Government because there is no specific empowering provision in the United States Constitution would be to take an unwarranted constricted view of state and national powers and would hobble the effective functioning of our federalism. Diffusion of power has its corollary of diffusion of responsibilities with its stimulus to cooperative effort in devising ways and means for making the federal system work. That is not a mechanical structure. It is an interplay of living forces of government to meet the evolving needs of a complex society.7 A particularly important 1968 statute, An Act to Assist State and Local Governments in Reducing the Incidence of Crime, empowers the U.S. Attorney General to file an application with a federal judge requesting the issuance of an order authorizing the interception of oral and wire communications

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by the Federal Bureau of Investigation relating to animal enterprise terrorism, buying or selling children, child pornography, drugs, explosives, false identification documents, identity theft, hostage taking, kidnapping, mail fraud, obstruction of state or local law enforcement, murder for hire, riots, stolen property, stolen motor vehicles and parts, destruction of motor vehicles and related facilities, theft from interstate shipments, transmission of waging information, and other criminal activities.8 Congress in 1984 increased its assistance to states by enacting a statute providing for the forfeiture of property used in committing any of the above crimes.9 The U.S. District Court for the Northern District of Georgia, for example, convicted Dr. Richard M. Dicter of dispensing narcotics in the absence of a valid medical purpose. The jury took the unusual step of including in its verdict forfeiture of Dicter’s medical license and he appealed. The U.S. Court of Appeals for the Eleventh Circuit in 1999 affirmed the lower court decision and the U.S. Supreme Court in 2000 rejected a petition for the issuance of a writ of certiorari.10 The Supreme Court’s decision has major federalism implications since the issuance or revocation of a medical license historically had been the sole prerogative of the states. The Mail Fraud Act initially was designed to prevent perpetration of frauds by use of the mails. Subsequently, Congress extended the act’s provisions to apply to crimes previously prosecuted by state and local government officers, thereby aiding state prosecution of persons committing fraud. Stephen F. Smith in 2005 wrote, “[E]xpansive constructions of federal criminal statutes allow federal prosecutors to shift more offenders from the state system into the federal system,” thereby producing a financial savings for states.11 Alcoholic Beverages Congress in 1794 for the first time protected the revenue sources of states by requiring dealers in wines and foreign distilled spirits to obtain and pay for licenses and renew them annually subject to penalties for failure to comply.12 The licenses were simply receipts for taxes paid and did not authorize licensees to carry on a business in a state if state law prohibited the activity. The U.S. Supreme Court established this fact in the famous License Tax Cases of 1866.13 To avoid confusion, Congress in the Internal Revenue Act of 1864 and the Internal Revenue Act of 1866 stipulated that such a license should not be construed as authority for a business to operate in a state if the laws thereof prohibit the business.14 As noted, Congress enacted the Wilson Act in 1890 providing “all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory, or remaining therein for use, consumption, sale

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or storage therein, shall upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police power, to the same extent and in the same manner as though such liquids and liquors had been produced in such state or territory, and shall not be exempt therefrom by being introduced in their original packages or otherwise.”15 The U.S. Supreme Court in 1891 upheld the constitutionality of the act in Wilkerson v. Rahrer.16 Judicial interpretation of the act allowed a mail order firm to ship such beverages to a consignee for personal consumption in a dry state. Congress responded by enacting in 1909 a law stipulating “all spirituous, vinous, malted, fermented, or other intoxicating liquors of any kind are nonmailable and shall not be deposited in or carried through the mails.”17 The Webb-Kenyon Act of 1913 made illegal the receipt and resale of alcoholic beverages contravening a state law.18 The Revenue Act of 1918 levied a $1,000 occupational tax on individuals engaged in business as a brewer, distiller, wholesale or retail liquor dealer, wholesale or retail dealer in malt liquors, and manufacturer of stills in a state contrary to its laws.19 Congress reauthorized the tax in 1921, 1924, and 1926. The constitutionality of the tax was challenged and the U.S. Supreme Court in 1935 in United States v. Constantine opined: “The question is whether the extraction of $1,000 in addition, by reason solely of . . . violation of state law, is a tax or penalty.”20 The Court concluded the tax was a penalty for violation of state laws and hence exceeded “the limits of federal power.”21 Justice Benjamin N. Cardozo, joined by Justices Louis D. Brandeis and Harlan F. Stone, dissented. Justice Cardozo explained the reasons why the tax was levied: “Congress may reasonably have believed that, in view of the attendant risks, a business carried on illegally and furtively is likely to yield larger profits than one transacted openly by law-abiding men. . . . Congress may also have believed that the furtive character of the business would increase the difficulty and expense of the process of tax collection. Congress may have held . . . an illegal and furtive business . . . is a breeder of crimes and a refuge of criminals; and . . . in any sound system of taxation, men engaged in such a calling will be made to contribute more heavily to the necessities of the treasury than men engaged in a calling that is beneficent and lawful.”22 The Eighteenth Amendment to the U.S. Constitution, effective in 1919, established national prohibition of the sale and consumption of alcoholic beverages with exceptions for use in a religious service, a medical treatment with a prescription, or scientific research. The Twenty-First Amendment repealed prohibition, effective in 1933, and incorporates generally the provisions of the two earlier acts by stipulating: “The transportation

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or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”23 A 1948 act prohibits the importation into a state of intoxicating liquors “containing more than 4 per centum of alcohol by volume or 3.2 per centum by weight” in violation of state law with the exceptions of such liquors for scientific, sacramental, medicinal, and mechanical purposes.24 The U.S. Court of Appeals for the Tenth Circuit in 1950 explained the purpose of this section was to offer federal protection to dry states against violations directed from outside them by providing for the determination of the legality of liquor importations at the border of a dry state that prohibits all importation or requires permits for lawful importations.25 A second 1948 act bans from the mails all spirituous, vinous, malted, fermented, or other intoxicating liquors, thereby facilitating state collection of the applicable excise tax.26 Each state legislature has enacted a direct shipment statute regulating interstate shipment of alcoholic beverages to some extent. These statutes generally may be placed in three classes: (1) Fifteen states allow direct shipment of beverages from sister states to persons twenty-one years of age and over for personal consumption if sister states accord reciprocity; (2) Thirty-eight states permit limited amounts to be shipped to residents; and (3) Seven states permit no direct shipments.27 The U.S. Supreme Court in Granholm v. Heald in 2005 invalidated a Michigan statute and a New York statute regulating the direct interstate shipment of wine and granting exceptions for their respective wineries as violating the dormant interstate commerce clause.28 Congress in the same year, concerned with terrorist attacks, enacted a statute permitting the direct shipment of wine to a consumer if the concerned individual purchased wine at a winery in a sister state during a period when the Federal Aviation Administration has imposed restrictions on passengers to ensure safety.29 Gambling Gambling assumes many forms, and state governments historically prohibited specified types of gaming activities. The constitutionality of such prohibitions was challenged on a number of occasions, but courts upheld the prohibitions. To assist state and local governments to enforce their antigambling laws, Congress enacted the Organized Crime Control Act of 1970 criminalizing (1) a conspiracy by two or more persons to obstruct enforcement of a state or local law prohibiting an illegal gambling business, and (2) illegal gambling businesses violating a state or local government law if the business

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“involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business” which has been in operation for more than thirty days or has a gross revenue of $2,000 on any day.30 Title IX of the act adds a new chapter to the United States Code—racketeer influenced and corrupt organizations (RICO)—strengthening federal enforcement of criminal laws.31 Lotteries Colonial governments raised revenue in part by lotteries, and state governments in 1776 continued to operate lotteries. The antigambling movement, emphasizing fraud and related social problems, gained strength during the latter half of the nineteenth century and persuaded state legislatures to terminate lotteries. The last lottery was closed by Louisiana in 1894. Lacking a broad base tax, the New Hampshire General Court (state legislature) in 1964 inaugurated a state lottery based upon the belief most lottery revenues would come from residents of neighboring states. Forty-two states, the District of Columbia, Puerto Rico, the Virgin Islands, and five Canadian provinces subsequently established lotteries.32 Congress enacted an 1890 act banning lottery materials from the U.S. Mail and an 1895 act excluding such materials from interstate commerce in order to assist states in enforcing their anti-lottery statutes.33 In 1895, Congress enacted a statute supplementing prior statutes excluding lottery tickets from the U.S. Mail by prohibiting importation of lottery materials from other nations and the transfer of lottery advertisements from one state to another by any means.34 The constitutionality of the act was challenged on an appeal from the decision of the Circuit Court of the United States for the Northern District of Illinois to review a court order dismissing a writ of habeas corpus under a warrant charging a conspiracy to cause lottery tickets to be carried from Texas to California via the Wells Fargo express company. The U.S. Supreme Court in 1903 reviewed its interstate commerce decisions in the period since 1824 and affirmed the lower court judgment by opining that the power of Congress to regulate interstate commerce is plenary and “subject only to such limitations as the Constitution imposes upon the exercise of the powers granted it”35 Currently, federal law stipulates: Whoever brings into the United States for the purpose of disposing of the same, or knowingly deposits with any express company or other common carrier for carriage, or carries in interstate or foreign commerce any paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery . . . offering prizes . . . or

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engaged in the business of procuring a person in 1 state a ticket, chance, share, or interest in a lottery . . . conducted by another state (unless that business is permitted under an agreement between the states in question or appropriate authorities of those States) knowingly transmit in interstate or foreign commerce information to be use for the purpose of procuring such a ticket . . . shall be fined under this title or imprisoned not more than two years, or both.36 Proponents argue lotteries produce needed revenues for important state functions, public education in particular, and achieve a desirable social purpose by competing with illegal gambling controlled by organized crime. It should be noted that legal gambling alternatives to lotteries are available in a number of states and include casinos and pari-mutuel betting on greyhound and horse racing. John K. Mikesell examined state lotteries and found: Lottery sales have grown substantially since the mid-l980s but have not kept pace with other forms of commercial gambling. Lottery net proceeds exceed $1 billion in two states (New York and Texas). Lottery proceeds are an insignificant component of the state revenue portfolio. The cost of administering the lottery is high, averaging 41.4¢ required to produce $1 of lottery net proceeds. The performance of individual state lotteries varies widely.37 A Pennsylvania corporation challenged the constitutionality of Pennsylvania Act 8 of 1993 making it a crime to procure for persons in the state an interest in a lottery conducted in a sister state.38 The U.S. District Court for the Middle District of Pennsylvania ruled the act violated the interstate commerce clause of the U.S. Constitution and the commonwealth appealed. The U.S. Court of Appeals for the Third Circuit noted that prior to the scheduled oral argument Congress enacted the Violent Crime Control and Law Enforcement Act of 1994 making it a federal crime to procure such an interest in a lottery ticket(s).39 The court upheld the constitutionality of the Pennsylvania act by noting that Congress did not state its intention in the 1994 act to preempt state laws and the act in question was consistent with the conduct proscribed by the act.40 This congressional act also authorizes states to enter into interstate lottery compacts (see chapter 4).41

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Gamblers’ Occupational Tax As explained above, the U.S. Supreme Court in 1866 in the License Cases opined the payment of a license fee to the U.S. Collector of Taxes was not a grant of authority to a business to operate a retail liquor business or a lottery in a state whose laws prohibited these activities. On January 2, 1951, Congress enacted a statute making it “unlawful knowingly to transport any gambling device to any place in a State . . . from any place outside of such State . . . ,” but stipulating the act does not apply to a state that enacted a law providing for the exemption of the state from the act.42 The statute was challenged on the ground the exemption was an unconstitutional delegation of the interstate commerce power of Congress to states. The U.S. Court of Appeals for the Eighth Circuit rejected this argument and the U.S. Supreme Court denied the petition for the issuance of a writ of certiorari.43 Congress enacted the Revenue Act of 1951, based upon its delegated taxation power, to assist states in enforcing their gambling laws by levying a fifty dollars gamblers’ occupational tax on individuals engaged in the business of accepting wagers who are required to register with the collector of internal revenue and penalizes those failing to register and pay the tax.44 The collector forwards the registration information to appropriate state officers as prima facie evidence the concerned individuals have violated state law. The act grants jurisdiction to the Federal Bureau of Investigation to investigate suspected gamblers. As anticipated, the constitutionality of the act was challenged as an infringement by the federal government of the police power reserved to the states by the Tenth Amendment to the U.S. Constitution. The U.S. District Court for the Eastern District of Pennsylvania in 1952 granted the defendant’s motion to dismiss the information (indictment) on the ground the act was a usurpation of the states’ police power under the guise of a taxation act.45 The United States appealed the decision to the U.S. Supreme Court which in 1953 in United States v. Kahriger upheld the constitutionality of the act by emphasizing “the power of Congress to tax is extensive and sometimes falls with crushing effect on businesses deemed unessential or inimical to the public welfare, or where, as in dealings with narcotics, the collection of the tax also is difficult. . . . The remedy for excess taxation lies in the hands of Congress, not the courts.”46 The court also rejected the appellee’s contention that the tax is unconstitutional as “a denial of the privilege against self-incrimination as guaranteed by the Fifth Amendment” by opining: “Since appellee failed to register for the wagering tax, it is difficult to see how he can now claim the privilege even assuming the disclosure of violations of law is called for.”47

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Justice Felix Frankfurter issued a sharp dissent by opining “when oblique use is made of the taxing power as to matters which substantively are not within the powers delegated to Congress, the Court cannot shut its eyes to what is obviously, because designedly, an attempt to control conduct which the Constitution left to the responsibility of the States, merely because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”48 He particularly objected to the compulsory self-incriminating disclosures to assist the enforcement of state gambling laws. The Revenue Act of 1951 also imposed a 10 percent excise tax on the gross amount of all wagers accepted by persons engaged in the business of accepting wagers who are required to register with the collector of internal revenue. Registrants must post revenue stamps conspicuously in their places of business or keep the stamps in their possession if lacking a place of business. A gambler was convicted of violating the act in the U.S. District Court for the District of Connecticut and the conviction was affirmed by the U.S. Court of Appeals for the Second Circuit.49 Upon appeal, the U.S. Supreme Court in 1969 reversed the lower court decision by opining the privilege against self-incrimination provision of the Fifth Amendment to the U.S. Constitution was violated as every aspect of the tax “had the direct and unmistakable consequence of incriminating petitioner”50 Internet Gambling Congress enacted the Unlawful Internet Gambling Enforcement Act of 2006 criminalizing Internet gambling conducted in violation of federal law or state law, but the act does not apply to intrastate bets or wagers provided they expressly are authorized by state law and do not violate any provision of the Interstate Horseracing Act of 1978, Professional and Amateur Sports Protection Act, Gaming Devices Transportation Act, and Indian Gaming Regulatory Act.51 Animals, Birds, Fish, and Plants The Lacey Act of 1900, the oldest federal wildlife protection act, prohibits the interstate transportation of animals or birds killed in violation of the laws of a state.52 The purpose of the act is to provide the assistance of the Federal Bureau of Investigation in the enforcement of a state’s laws pertaining to the hunting of animals and birds.53 The act has been amended on a number of occasions. Amendments enacted in 1956 proscribe the interstate shipment of alligator grass, water chestnut plants, and water hyacinth plants or their seeds.54 A 1960 amendment broadens the act’s definition of a crime to include “whoever delivers

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carries, transports, ships, by any means” wildlife taken in violation of state law and “whoever receives, acquires, or purchases, knowingly, any such wild mammal or bird of any kind or the dead body or parts thereof, or the offspring or eggs therefrom . . .”55 A 1969 amendment defines the term fish and wildlife to mean “any wild mammal, fish, wild bird, amphibian, reptile, mollusk, or crustacean.”56 The Lacey Act Amendments of 1981 widen the prohibition on interstate transportation of fish and wildlife to include “any plant taken, possessed, transported, or sold in violation of any law or regulation of any State.”57 Enforcement of the Lacey Act and other criminal acts has been aided by the Violent Crime Control and Law Enforcement Act of 1994, which stipulates: “If two or more persons conspire to commit any offence against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years or both.”58 This provision is particularly important relative to the Lacey Act because wildlife traffickers often are arrested prior to violating the act.59 In 1966, Congress granted the secretary of agriculture the power to regulate the transportation, sale, and handling of dogs, cats, and certain other animals intended to be used for research purposes or experimentation, and specifically authorized the secretary “to cooperate with the officials of the various States or political subdivisions thereof in effectuating the purpose of this Act and of any State, local, or municipal legislation or ordinance on the same subject.”60 The scope of this act was increased by the Animal Welfare Act Amendments of 1976 which was amended by the Animal Fighting Prohibition Enforcement Act of 2007.61 The Animal Enterprise Protection Act of 1992 makes it a federal offense for an individual to travel “in interstate or foreign commerce” or uses or causes “to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; or intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so.”62 Congress in the Animal Enterprise Terrorism Act of 2006 strengthened the 1992 act and increased the penalties for its violation.63 Adulterated or Misbranded Foods and Drugs In 1848, Congress enacted its first act regulating adulterated drugs by prohibiting their importation.64 Domestic regulation of foods and drugs continued to be the responsibility of the states.

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Congress in 1902 addressed the problem of falsely labeled or branded dairy products by prohibiting any person, company, or corporation to introduce into a state or territory from another state or territory any dairy or food products falsely labeled or branded relative to the state or territory where they were made, produced, or grown.65 A 1903 act provides for the punishment of false labeling or branding of imported dairy or food products after they have cleared customs.66 The Food and Drugs Act of 1906 is the first comprehensive congressional act regulating these products.67 The U.S. Supreme Court in 1912 opined that a state may impose reasonable restrictions on foods and drugs produced or sold within its boundaries provided there is no direct conflict with federal laws.68 Litigation and administrative experience revealed defects in the act and a bill was introduced in Congress in 1933 to correct the defects and, after five years of hearings and amendments, was enacted as the Federal Food, Drug, and Cosmetic Act of 1938, which brought cosmetics and medical devices under federal regulation and required drugs to be properly labeled, including directions for their safe use.69 The act also authorized inspection of factories and the U.S. district court to issue injunctions to stop violations of provisions of the act. Federal and state regulatory coordination was improved by the proposal in 1940 and enactment by many state legislatures of a uniform food, drug, and cosmetic law. A 1923 congressional statute declares filled milk is an adulterated food, causes injury to the health of citizens, and a fraud is committed if the filled milk is sold.70 The U.S. Supreme Court in 1944 entertained an appeal positing the act does not include compound products. A corporation had been found guilty of taking whole milk, removing butterfat, and substituting cottonseed or cocoanut oil and fish oil. The court rejected the contention and opined: “When Congress exercises a delegated power such as that over interstate commerce, the methods it employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat. This is not shown here.”71 Drunk Driving In 1990, Congress decided to ensure that drunk drivers would be held financially responsible for deaths, injuries, and property damage they cause by enacting the Criminal Victims Act of 1990 amending the Bankruptcy Act and providing for the nondischarge of certain debts arising from the unlawful driving while intoxicated or impaired.72 Congress enacted a 1996 statute adopting state laws on drunk driving for areas within federal jurisdiction where Congress had not made drunk driving punishable and expanded the territorial jurisdiction of states in the

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following language: “Whenever any waters of the territorial sea is outside the territory of any state . . . , such waters (including airspace above and the seabed and subsoil below . . . ) shall be deemed . . . to lie within the area of the state . . . that it would be within if the boundaries of such State . . . were extended seaward to the outer limit of the territorial sea of the United States.”73 Firearms Congress enacted the National Firearms Act of 1934 imposing an annual $200 occupational license tax on firearms dealers.74 The tax was challenged on the ground it exceeded the powers delegated to Congress and encroached upon the reserved powers of the states. In 1937, the U.S. Supreme Court explained: “[E]very tax in some measure is regulatory,” and rejected the appellee’s argument by holding Congress in exercising its constitutional power to tax “may select the subjects of taxation, choosing some and omitting others.”75 The Court reinforced its decision by noting an “inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of the courts.”76 A second challenge to the constitutionality of the act reached the Court in 1939 and was based upon the contentions that the act was a usurpation of the police power of the states and not a revenue measure, and a violation of the Second Amendment to the U.S. Constitution that stipulates: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The court upheld the constitutionality of the act against the charge of violation of the Second Amendment by opining: “In the absence of any evidence tending to show that possession or use of a ‘shotgun’ . . . has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”77 The National Firearms Act requires individuals who obtained a firearm without complying with the act’s other requirements to register with the secretary of the treasury. These individuals are suspected of engaging in criminal activities. The U.S. Supreme Court in 1968 in Haynes v. United States held the privilege of no self-incrimination clause protected a person with a firearm from being required to register under the National Firearms Act because “a prospective registrant realistically can expect registration will substantially increase the likelihood of his prosecution . . .”78

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A 1994 amendment to the act mandates an individual required to register for a license under the act must include a photograph and fingerprints with the initial application, and cannot operate the business if a state or local law where the business would be conducted prohibits the business.79 Fraud Congress has a long history of enacting statutes banning the use of the mails for purposes of fraud dating to an 1868 statute making it “unlawful to deposit in a post office, any letters or circulars concerning lotteries, so-called gift concerts, or similar enterprises.”80 An 1872 act declared it is a misdemeanor if an individual devises or intends to devise a scheme to defraud others by means of the postal system.81 In 1896, the U.S. Supreme Court gave a broad interpretation to the act by opining it includes “everything designed to defraud by representation as to the past or present, or suggestions and promises as to the future.”82 The Mail Fraud Act of 1909 amended the earlier acts by incorporating the above language and criminalizing the “obtaining of money or property by means of false or fraudulent pretenses, representations, or promises.”83 A 1952 act made it a federal crime to commit a fraud by wire, radio, or television.84 Congress in 1994 inserted in the Violent Crime Control and Law Enforcement Act of 1994 a provision expanding the Mail Fraud Act to include parcels “sent or delivered by any private or commercial interstate carrier.”85 In effect, the act has become a general fraud act. Section 1341 of Title 18 of the United States Code currently contains prohibitions on various types of fraud and occupies 489 pages. The Commodity Futures Modernization Act of 2000 added a savings clause to the Securities Exchange Act of 1934 as amended: “No provision of State law regarding the offer, sale, or distribution of securities shall apply to any transaction in a security futures product, except that this sentence shall not be construed as limiting any State antifraud law of general applicability.”86 Money Laundering Criminals deriving large sums of money from illegal enterprises seek to convert their illicit gains into clean money through a process known as money laundering. The widespread domestic and international laundering of such funds persuaded Congress to enact the Money Laundering Control Act of 1986 focusing on the perpetrator(s) of any financial transaction involving proceeds from an unlawful activity that knowingly is designed to “(i) conceal or disguise the nature, the location, the course, the ownership,

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or the control of proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Federal law.”87 A person convicted of money laundering is subject to a fine of up to $500,000 or twice the value of the property involved in the transaction, whichever is larger, and imprisonment for up to twenty years, or both. The U.S. Supreme Court in 2008, by a five to four vote, narrowed the scope of the act because Congress did not specify what it meant by “proceeds” and the dictionary definition can mean either “receipts” or “profits“; the court interprets ambiguous criminal statutes in favor of the defendant.88 Morality Congress in the nineteenth century enacted several important statutes designed to assist states to uphold their criminal morality statutes. Transportation of Women for Immoral Purposes Congress enacted an immigration act in 1875 making it a felony for any person knowingly to import or cause the importation of a woman or girl into the United States for the purpose of prostitution, and amended the act in 1903 and 1907.89 The latter act was featured in a 1908 decision of the U.S. Supreme Court and involved a person who imported a woman from England so that she could be his concubine. The U.S. circuit court sustained a demurrer to the indictment and dismissed it on the ground the act did not specifically make it a crime for a person to import a woman to be his concubine. The United States filed a writ of error to bring the case directly to the U.S. Supreme Court which reversed the lower court judgment and opined that the words in the act “or for any other immoral purposes” referred to “the views commonly entertained among the people . . . as to what is moral or immoral in the relations between man and woman in the matter of such intercourse.”90 State governments experienced difficulty in enforcing their antiprostitution laws. Congress decided to use its interstate commerce power to assist state law enforcement and enacted the White Slave Traffic Act of 1910, popularly as known the Mann Act, making it a federal crime to transport women or girls in interstate or foreign commerce “for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice . . .”91 Effie Hoke was charged with violating the act on November 14, 1910, in New Orleans by unlawfully, feloniously, and knowingly persuading Annette

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Baden to travel from New Orleans to Beaumont, Texas, for the purpose of prostitution. Ms. Hoke was found guilty and her appeal reached the U.S. Supreme Court where her counsel contended the act was unconstitutional because it violated the privileges and immunities clause and the Ninth Amendment to the Constitution by disparaging other rights retained by the people, and the powers not specifically delegated to Congress are reserved by the Tenth Amendment to the states and the people. The court opined: “It is misleading to say that men and women have rights. Their rights cannot fortify or sanction their wrongs, and if they employ interstate transportation as a facility of their wrongs, it may be forbidden to them . . .”92 In 1948, Congress enacted a statute making it a federal crime if a person mails obscene or crime-inciting material including instruments, drugs, and medicine advertised to persuade a person to use or apply the proscribed items for procuring an abortion or any indecent or immoral purpose.93 Congress enacted the Child Sexual Abuse and Pornography Act of 1986 amending the Mann Act by deleting the terms debauchery and other immoral purpose and requiring in effect intent on the part of an individual to violate a state criminal law relating to sexual activity.94 Narcotics Congress enacted the Harrison Narcotics Tax Act of 1914 to implement the Hague Convention of 1912 which sought to solve primarily the opium problems in the Far East.95 The act required the registration of “all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, preparations, and for other purposes” and the payment of a tax. A physician was exempt from the act “in the course of his professional practice only.” In 1916, the U.S. Supreme Court reviewed the decision of the U.S. District Court for the Western District of Pennsylvania quashing an indictment charging a conspiracy for the possession of opium and salts derived therefrom. The court affirmed the lower court decision by interpreting the act narrowly as a revenue act, thereby restricting its coverage to persons required to register.96 The act was amended in 1919 and reenacted in the Revenue Act of 1921.97 As revised, the act imposed a stamp tax on specified drugs and stipulated they could be purchased or sold only from original stamped packages. The U.S. Supreme Court in 1927 upheld the amended act by opining the tax is not an attempt “to invade the reserved powers of the states.”98 The following year the court answered questions contained in a certificate from the U.S. Circuit Court of Appeals for the Eighth Circuit pertaining to the validity and proper construction of the act as amended. The questions related to issues arising in the court’s consideration of error

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of a conviction judgment on the second count of an indictment charging Frank Nigro and Roy Williams with unlawfully selling morphine that was not sold in pursuance of written order on a form issued in blank for the purpose by the commissioner of internal revenue. Nigro was convicted and sentenced to imprisonment for five years. The court held the act was a constitutional “taxing measure.”99 Congress enacted the Marihuana Tax Act of 1937 imposing a stamp tax on marihuana traffic to raise revenue and discourage smoking marihuana.100 The act incorporated elements of the Harrison Narcotics Act and the National Firearms Act and required dealers to register and pay a tax of $100 per ounce of marihuana. The records generated were open for inspection by state and local government law enforcement officers and copies of the records were supplied at their request. Dr. Timothy F. Leary was convicted on three charges involving violations of the Marihuana Tax Act in the U.S. District Court for the South District of Texas and the conviction was upheld by the U.S. Court of Appeals for the Fifth Circuit in 1967.101 Leary maintained that compliance with the act would be self-incrimination and appealed to the U.S. Supreme Court, which in 1969 reversed the conviction and opined the act, by requiring a person to register and provision of the registration information to subnational law enforcement officers, violated the privilege against self-incrimination protected by the Fifth Amendment to the U.S. Constitution.102 In response to the Court’s decision, Congress repealed the Marihuana Tax Act and enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 that places all controlled substances in five schedules with restrictions that vary.103 Marihuana is a schedule 1 drug and its use is prohibited with the exception of use in a food and drug administration preapproved research study with secured storage and required record keeping. Congress in appropriating funds for fiscal year 2008 directed the National Drug Intelligence Center to “maintain the personnel and technical resources to provide timely support to law enforcement authorities and the intelligence community by conducting document and computer exploitation of materials collected in Federal, State, and local law enforcement activity associated with counter-drug, counter-terrorism, and national security investigations and operations.”104 Stolen Motor Vehicles The problem of stolen motor vehicles escalated with the spread of their ownership. Although state and local police often are able to recover these vehicles within their respective state, recovery of vehicles transported to sister states or foreign nations presents another obstacle. Congress responded

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to this problem in 1919 by making it a federal crime to transport a stolen vehicle in interstate or foreign commerce.105 Congress addressed again in the Motor Vehicle Theft Law Enforcement Act of 1984 the problem of chop shops and stolen vehicles by improving the required vehicle identification part numbers.106 The Anti Car Theft Act of 1992 enhanced penalties for such thefts if they involve the use of a firearm (carjacking) and directed the Federal Bureau of Investigation to cooperate with state and local government officers in the investigation of such thefts.107 The act also (1) increases the penalty for any person operating a chop shop, (2) establishes a national motor vehicle title information system to provide “instant and reliable access to information maintained by other States pertaining to the titling of automobiles,” with participating states performing an instant title verification check prior to issuing a certificate of title to a person or organization claiming to have purchased a vehicle from an individual or organization in a sister state, (3) establishes the national stolen auto parts information system containing the identification numbers of stolen vehicles and motor vehicle parts, and (4) makes more difficult the export of stolen vehicles to foreign nations by requiring the person desiring to ship a vehicle to provide to the U.S. Customs Service the vehicle identification numbers and poof of ownership seventy-two hours in advance of the date of shipment.108 The title information system also is designed to alert consumers relative to flooded and wrecked motor vehicles. In 1994, Congress enacted the Motor Vehicle Theft Prevention Act establishing a national voluntary motor vehicle theft prevention program in cooperation with states, and made it a federal offense to alter, obliterate, remove, or tamper with a motor vehicle or motor vehicle part identification number.109 Stolen Livestock and Goods Congress in 1919 made it a federal crime for a person to transport stolen livestock (buffalo, cattle, fowl, goats, horses, llamas, sheep, or carcasses thereof) in interstate or foreign commerce, thereby aiding state and local law enforcement officers to apprehend criminals.110 A 1948 act of Congress criminalizes embezzling, stealing, or unlawfully taking property from a pipeline system, railroad car, motor truck, trailer, or other vehicle moving in interstate or foreign commerce or from a storage facility, and the receipt of such goods or chattels.111 The act also stipulates: “A judgment of conviction or acquittal on the merits under the laws of any State shall be a bar to any prosecution under this section for the same act or acts. Nothing in this section shall be construed as indicating intent on

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the part of Congress to occupy the field . . . to the exclusion of State laws on the same subject matter . . .”112 A second 1948 act criminalizes the act of transporting, transmitting, or transferring in foreign or interstate commerce “any wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.”113 A fence deals in stolen goods and plays important roles in obtaining and disposing of stolen goods. Fences, among other activities, recruit and support thieves.114 The Antiterrorism and Effective Death Penalty Act of 1996 makes it a federal criminal offense “for any person to receive, possess, transport, ship, conceal, store, barter, sell, dispose of . . . any stolen explosive materials” shipped in interstate or foreign commerce.”115 Cigarette Excise Taxes The wide variation in the rates of state excise taxes levied on cigarettes encourages buttlegging (illegal sale of cigarettes) to avoid payment of the tax in the home state. Congress first assisted states to enforce their tax laws by enacting the Jenkins Act of 1949 prohibiting the use of the mails to deliver cigarettes in order to evade tax payments.116 The act was challenged in Consumer Mail Order Association of America v. McGrath in 1950 as unconstitutional, but the U.S. District Court for the District of Columbia summarily rejected the challenge and opined, “[I]t can not be said that the reporting requirement is unreasonable or inappropriate to the permissible end(s) of Congress to prevent the use of facilities of interstate commerce in violating state laws“; the decision was affirmed by the U.S. Supreme Court in 1951.117 The act was amended in 1955 to require cigarette shippers to file a monthly memorandum with each state tax administrator listing each shipment during the previous month and the name and address of the recipient.118 The constitutionality of this act was challenged on the ground it violates the Fifth Amendment’s constitutional privilege against self-incrimination, but the challenge was rejected in 1971 by the U.S. District Court for the Southern District of New York.119 Interstate smuggling continued and states pressured Congress to initiate action to address the problem. Congress’ response was the Contraband Cigarette Act of 1978 criminalizing the distribution, possession, purchase, receipt, shipment, or transportation of more than sixty thousand cigarettes lacking the tax indicia of the state where they were found and requiring the seller to report the names and addresses of purchasers, and to file monthly beginning and ending inventories.120 The USA Patriot Improvement and Reauthorization Act of 2005 reduced the number of cigarettes to ten thousand.121

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The Jenkins Act only prohibits the use of the postal service to evade excise tax payments; other modes of transportation are not covered and a violation of the act is only a misdemeanor. In consequence, U.S. attorneys rely upon the Mail Fraud Act of 1909 to prosecute violators since a violation is a felony. Kidnapping and Bank Robbery The English common law defined kidnapping and its definition has been modified by state legislatures with variations in the degree of movement of the victim distinguishing kidnapping from an assault involving a brief confinement.122 The kidnapping and murder of the infant son of Charles A. Lindberg prompted a swift response from Congress in the form of the Lindberg Kidnapping Act of 1934 making the transportation in interstate or foreign commerce of a kidnapped person a federal crime and mandating life imprisonment for a kidnapper and the death penalty if the kidnapped person died.123 The act has been described as “a legal supplement to state kidnapping laws: a nationwide rule of illegality that could govern where a single state’s law could not.”124 A 1972 amendment made it a federal crime for a person to arrange for the kidnapping and transport of the victim across a state line or to lure an individual across a state line even if the person did not accompany the kidnapped individual across a state line.125 A 1998 amendment clarified the act by stipulating “regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began.”126 The Bank Robbery Act of 1934 is based upon the same rationale as the Lindberg Kidnapping Act of 1934; that is, to assist in the enforcement of state criminal laws.127 Stalking of Women Congress in the Violence Against Women and Department of Justice Reauthorization Act of 2005, signed by President George W. Bush in 2006, amends the Safe Streets for Women Act of 1994 by making it a federal crime for a person to travel in interstate commerce for the purpose of stalking and also prohibits cyber stalking involving use of software and the Internet.128 Protection of Children Congress in recent years enacted a series of statutes designed to protect public morality in general and children in particular and to assist states in

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the enforcement of their criminal laws. A 1948 act criminalizes the transportation of individuals under the age of eighteen years in interstate or foreign commerce for the purpose of engaging in prostitution.129 A 1978 act criminalizes the actions of a person who employs, uses, induces, or coerces a minor to engage in a sexually explicit conduct for purposes of producing a visual depiction of such conduct, or transports a minor in interstate or foreign commerce for such a purpose.130 The Child Sexual Abuse and Pornography Act of 1986 makes it a federal crime for a person to make, print, or publish an advertisement or notice offering to distribute exchange, purchase, or reproduce “any visual depictions, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.”131 The Child Pornography Act of 1996 extends the prohibition of such pornography to include “any visual depiction, including any photograph, film, video picture, or computer or computer-generated image or picture.”132 The U.S. Supreme Court in 2002 invalidated sections of the act as overly broad because they prohibit “a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie.”133 Congress responded to the Court’s 2002 decision by enacting the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 which (1) mandates life imprisonment for a person convicted of a federal sex offense involving a minor for the second time unless the death penalty is imposed, (2) improves the prohibition of virtual child pornography, and (3) criminalizes obscene visual representations of the sexual abuse of children, including a drawing, cartoon, sculpture, or painting, use of misleading domain names on the Internet with the intent to deceive a person into viewing obscene material, and use of minors in crimes of violence.134 The U.S. District Court for the Southern District of Florida convicted Michael Williams on the charge of pandering child pornography.135 The Circuit Court of Appeals for the Eleventh Circuit reversed the conviction by ruling the law was overbroad and impermissibly vague.136 The U.S. Supreme Court in 2008 upheld the constitutionality of the act by observing that “Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified.”137 The Protection of Children from Sexual Predators Act of 1998 bans the use of interstate facilities to transmit information pertaining to a minor, increases penalties for child pornography offenses, and prohibits the transfer of obscene material to minors.138 A 2003 act (1) mandates life imprisonment for a person convicted of a federal sex offense involving a minor for the second time unless the death penalty is imposed, (2) improves the prohibition of virtual child pornography, and (3) criminalizes obscene visual

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representations of the sexual abuse of children, including a drawing, cartoon, sculpture, or painting, use of misleading domain names on the Internet with the intent to deceive a person into viewing obscene material, and use of minors in crimes of violence.139 The Adam Walsh Child Protection and Safety Act of 2006 (1) criminalizes the act of using the Internet “to distribute a date rape drug to any person” with the belief the drug would be used in the commission of criminal sexual conduct, (2) provides for the civil commitment of a sexually dangerous person against whom criminal charges have been dismissed because of the mental condition of the person, (3) finds “federal control of the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography . . . is essential to the effective control of the interstate market in child pornography,” (4) directs the secretary of health and human services “to establish a national registry of substantiated cases of child abuse or neglect,” and (5) provides for the fining and imprisonment for not less than twenty years of any person engaging in a child exploitation enterprise.140 Congress also enacted statutes designed to assist states to collect child support by requiring each state to expand its wage withholding procedures to enforce the support orders of courts in sister states and making it a federal crime for an individual to travel in interstate or foreign commerce to avoid paying such support if the arrearages are unpaid for more than one year or exceed $5,000.141 Sporting Contests Congress in 1964 made it a federal crime for a person to attempt or conspire to influence sporting contests by bribery, but specifically stipulated the law “shall not be construed as an intent on the part of Congress” to exclude state laws on the subject.142 Other Program Assistance Congress plays a facilitating role by enacting statutes establishing special programs, including the 1994 motor vehicle theft prevention program noted above and grants-in-aid to states participating in the national instant background check system, to assist states to eliminate criminal problems.143 Highway Safety Congress established the National Driver Register (NDR) in 1960 to assist states in determining whether an applicant for an operator’s license has had

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his/her license in a sister state suspended or revoked.144 Control of NDR in 1998 was transferred from the secretary of transportation to the states.145 NDR receives from states and the District of Columbia information on drivers whose licenses have been suspended or revoked or who have been convicted of major traffic violations. A motor vehicle department can check electronically with NDR prior to issuing an operator’s license to determine whether the applicant has been convicted of motor vehicle violations in a sister state(s). If there is a file on a driver, NDR’s problem driver pointer system identifies automatically the state holding the driver’s substantive data and causes the data to be transferred electronically to the requesting state. Similarly, a state prior to renewing a license or addressing an in-state conviction of a motorist for a traffic violation can contact NDR to determine if the motorist has a violation(s) in another state. International Fuel Tax Agreement Equitable collection of state motor fuel excise taxes levied on motor carriers guaranteeing each state will receive its legitimate share of such tax revenue was difficult to ensure and a motor carrier was burdened by the requirement to register in each state in which its vehicles traveled. In 1983, Arizona, Iowa, and Washington signed an experimental administrative agreement establishing the interstate fuel tax agreement providing a motor carrier must have a base state responsible for collecting fuel taxes and distributing the revenues on a pro rata mileage basis to member jurisdictions. The agreement had sixteen members when Congress enacted the Motor Carrier Act of 1991, which in effect requires all states to participate in the international fuel tax agreement by stipulating a state legislature may not enact a fuel excise tax statute and a state administrator may not promulgate a regulation requiring a trucking company to pay a fuel tax “unless such law or regulation is in conformity” with the agreement “relative to collection of the tax by a single base state and proportional sharing of such revenues among the states where each commercial vehicle is registered.”146 The base jurisdiction state or Canadian province assesses and collects taxes owed by a motor carrier company for all of its fuel use in the jurisdiction of members and distributes to the other members revenues in proportion to the number of miles of travel by the company’s trucks in each jurisdiction. The company pays a net amount to the base jurisdiction since credits owed to the company by certain member jurisdictions are deducted from the liability owned to the other member jurisdictions. The agreement benefits each motor carrier who needs to have only one license, one set of credentials, one quarterly fuel tax report listing the

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tax or refund due, and one audit that collectively results in cost and time savings. Robert C. Pitcher concluded the agreement is “a remarkable success” because it allows states to retain their motor fuel taxation authority and relieves motor carriers of compliance costs estimated to have been $750 million annually prior to the agreement.147 International Registration Plan This plan was established in 1973 to administer on a cooperative basis a commercial motor carrier registration reciprocity program for vehicles traveling in two or more jurisdictions and to distribute licensing fees revenues on a pro rata basis to each member jurisdiction in accordance with the number of miles a carrier’s vehicles traveled in each member jurisdiction. The plan is administered by the international registration plan, incorporated which was established as a subsidiary of the American association of motor vehicles commissioners in 1994. The plan uses the identical definition of a commercial motor vehicle as the one used by the international fuel agreement. The Motor Carrier Act of 1991 contains a provision that persuaded every state to adopt the plan by stipulating a state loses its authority to establish and enforce any other commercial registration plan.148 States and the trucking industry benefit from this plan because national registration requirements replaced differing state registration requirements. Air Quality At the request of states, Congress enacted the Clean Air Act Amendments of 1990 establishing the ozone transport commission composed of twelve northeastern states sharing a common ground-level smog problem.149 The commission studies the problem and advances recommendations to reduce air pollution. In 1994, for example, the commission recommended that the U.S. Environmental Protection Agency require the member states and the District of Columbia to adopt the strict California low emission vehicle program.150 Although the agency did not promulgate such a requirement, the agency authorized the twelve states to adopt the California program and all did so. In the same year, the commission agreed to implement a plan to reduce nitrogen oxide (Nox) emissions from large fossil-fuel burning plants, chiefly electric power generating plants, principally by creating a market-based emissions trading program to reduce and cap regional Nox emissions substantially below levels required by application of reasonably available control technology. The program applies to in excess of one thousand large combustion facilities in the member states, including more than nine hundred electric generating

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units and over one hundred industrial units including steam boilers and process heaters. The program became effective on May 1, 2003, and almost immediately achieved a sixty percent reduction in Nox emissions.151

Summary Congress plays a key role in solving many subnational problems by utilizing its delegated powers to facilitate state efforts to enforce their criminal laws and to establish special programs benefiting states. The foreign and interstate commerce powers in particular have been exercised to criminalize actions taken by individuals and organized crime in order to grant jurisdiction to the Federal Bureau of Investigation to provide assistance to state and local government law enforcement officers. Examples include laws criminalizing travel in foreign or interstate commerce to avoid a state prosecution or giving testimony in a state criminal trial. Similarly, Congress discovered its power of taxation could be applied to gamblers whose registration information is sent to state and local government prosecutors as prima facie evidence that the registrants have violated state criminal laws, an oblique employment of a delegated power. Civil liberties advocates have been critical of several congressional criminal statutes facilitating state actions. This chapter also describes several congressionally initiated programs, including the National Driver Register, benefiting states. Chapter 4 details another aspect of congressional facilitation of state actions; that is, block and categorical grants-in-aid.

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CHAPTER FOUR

Congressional Financial Assistance

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ational financial assistance to states has been provided since 1790 when Congress assumed the debts incurred by the thirteen states in fighting the Revolutionary War. Subsequently, Congress appropriated $200,000 annually commencing in 1808 to assist states in arming and equipping their state militias, and distributed the surplus in the national treasury to the states in 1837 as unconditional grants-in-aid.1 An 1803 act admitting the Ohio territory to the Union as a state was the first one authorizing a land grant to a state and stipulating one section of land in each local political subdivision must be used for school purposes.2 Congress admitted the Territory of Illinois into the Union as a state in 1818 and required that 5 percent of the net proceeds of federal lands sold in the state must be transferred to the state for the construction of roads and “encouragement of learning.”3 The Morrill Act of 1862, the most major land grant, provided land to states to be sold to raise funds for the establishment of colleges of agriculture and mechanical arts.4 Continuing conditional cash grants-in-aid to states date to 1887, but the amount of funds appropriated was relatively small until ratification in 1913 of the Sixteenth Amendment to the U.S. Constitution authorizing Congress to levy graduated corporate and personal income taxes that annually produce huge sums of money. State and local governments continually lobby Congress to increase appropriations for grant-in-aid programs and for the lessening or removal of conditions of aid. Other interest groups benefiting from grants also lobby for increased grants-in-aid. This chapter examines the power to levy taxes, governmental tax immunity, state taxation of the income of nonresidents and foreign and alien corporations, various types of direct and indirect national government financial assistance to subnational governments, and congressional use of its fiscal powers to persuade these governments to implement national policies. Congress’ increased use of its fiscal and preemption powers in the twentieth century centralized a considerable amount of political power at the national plane of government, yet states retain vast reserved political powers whose

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use has been facilitated by many congressional statutes and administrative decisions (see chapters 2–3).

THE POWER TO TAX The federal graduated individual income tax and corporation income tax in 2007 produced 59 percent of the national government’s revenues (see Figure 4.1). Social security taxes and the income base upon which they are levied have been increasing, with the result that these taxes provide the national government with 34 percent of its revenues. State and local governments derived the bulk of their revenues until 1930 from business, excise, and property taxes. The general sales tax in the 1930s was the logical new tax for states to levy in view of the fact the national government relied chiefly upon the individual and corporate income taxes for revenue. The three most important state taxes in 2004 produced revenues as follows: (1) Sales taxes $188,829 million, (2) personal income taxes $218,400 million, and (3) corporate income taxes $34,217 million (see Figure 4.2). Customs Duties 1%

Miscellaneous Receipts 2%

Estate and Gift Taxes 1% Excise Taxes 3%

Social Insurance and Retirement Receipts 34%

Individual Income Taxes 45%

Corporation Income Taxes 14%

2007 Federal Government Revenue by Major Financial Source Total: $2,568.2 Billion Source: Fiscal Year 2009 Budget (Washington, DC: U.S. Government Printing Office, 2008)

Figure 4.1. Federal Government Revenue by Major Financial Source Fiscal Year 2007

Congressional Financial Assistance

Utility and Liquor Store Revenue 5%

Insurance Trust Revenue 18%

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Intergovernmental Revenue 17%

Charges and Miscellaneous General Revenue 19%

Taxes 41%

2004 State and Local Government Revenue by Major Financial Sector. Total: $2,435 billion

Source: United States Bureau of the Census, Compendium of Government Finances: 2004 (Washington, DC: U.S. Government Printing Office, 2006).

Figure 4.2. State and Local Government Revenue by Major Financial Sector

The property tax and excise taxes on individual products are levied in all states, but not all states levy a sales tax or income tax. Sales and gross receipts taxes raise in excess of one-sixth of state and local government revenues and are followed in importance by property taxes (15 percent) that only local governments generally levy. The individual income tax is the largest revenue producer in California, Maryland, and New York. New Hampshire is the only state that does not levy either a general personal income tax or a sales tax. The national government provides approximately seventeen percent of state and local government revenues or approximately the same percentage as the amount raised by state and local income taxes. This average percentage, however, masks the large amount of aid received for specific governmental functions. The amount of aid received for specific state programs varies greatly, with states heavily dependent upon the national government for highway construction and maintenance grants. Relatively little national financial aid is received for state police forces. Local governments similarly receive generous amounts of national financial aid for education and social welfare programs, in contrast to the small amounts of aid for police and fire protection.

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A decrease in the amount of federal grants as a percentage of total state and local government revenues has occurred even though the dollar amount of federal financial grants to subnational governments since 1950 has increased greatly. The national government nevertheless remains an important source of subnational governmental revenue with federal grants-in-aid alone totaling approximately $435 billion in fiscal year 2004.5 Congress also provides indirect financial assistance to state and local governments and facilitates their borrowing of funds at below market interest rates by exempting the interest paid on bonds issued by subnational governments from the federal income tax. In addition, Congress facilitates state taxation by the Tax Injunction Act of 1937, which stipulates: “The district courts shall not enjoin, suspend, or restraint the assessment, levy, or collection of any tax under state law where a plain, speedy, and efficient remedy may be had in the courts of such state” (see below).6 The potential exists in a federal system for more than one government levying the same type of tax (tax overlapping or multiple taxation) in the absence of constitutional provisions regulating or prohibiting such taxation. Both the national government and individual states rely upon excise taxes—beer, distilled spirits, motor fuel, tobacco, distilled spirits—for revenue. Because increases in federal excise taxes decrease consumption, states suffer a decline in their excise tax revenues. Constitutional Provisions Section 8 of Article I of the U.S. Constitution grants Congress the exceptionally broad power “to lay and collect taxes, duties, imposts, and excises” subject to the stipulation in Section 9 that “all duties, imposts, and excise shall be uniform throughout the United States.” This taxation power grant is not exclusive and state legislatures possess a similar broad power to levy taxes under their reserved powers subject to restrictions and prohibitions in the U.S. Constitution and state constitutions. U.S. Supreme Court decisions generally have interpreted broadly the taxing powers of Congress. Nevertheless, a congressionally levied tax without due process of law, as required by the Fifth Amendment to the U.S. Constitution, would be invalid. Similarly, a state tax levied without due process of law or equal protection of the laws required by the Fourteenth Amendment would be invalid. Section 10 of Article I of the U.S. Constitution forbids states, unless authorized by Congress, to lay any duty on tonnage or export or import duties except to finance their inspection laws. Revenues exceeding inspection costs must be deposited in the U.S. Treasury. The constitutional grant of power to

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Congress to regulate interstate and foreign commerce prevents state imposition of taxes constituting an undue burden on such commerce.7 Restrictions upon the power of state and local governments to levy taxes also are found in state constitutions.8 Most restrictions apply to local governments and include tax and deficit limits and exemption of religious, eleemosynary, private educational, federal government, and state government properties from taxation. Constitutional tax restrictions are supplemented by statutory restrictions. Governmental Tax Immunity In 1819, the U.S. Supreme Court for the first time was called upon to address the issue of intergovernmental taxation. The U.S. Constitution lacks a provision prohibiting state taxation of national government instrumentalities, yet the Court in McCulloch v. Maryland ruled Maryland could not tax notes issued by the nationally chartered United States Bank because such a tax would interfere with one of Congress’ delegated powers.9 In 1829, the Court in Weston v. Charleston extended the doctrine of intergovernmental tax immunity by opining that the supremacy of the law clause of the U.S. Constitution prohibits state taxation of U.S. government obligations.10 The Court in Collector v. Day in 1870 made tax immunity reciprocal by opining that Congress cannot tax a state instrumentality, including the salary of a state judge, because “the tax exemption rests upon necessary implication, and is upheld by the great law of self-preservation.”11 In 1895, the Court extended its 1870 opinion in Pollock v. Farmers Loan and Trust Company to holders of bonds issued by states and their local governments by declaring Congress could not levy an income tax on the interest received by bondholders.12 The Sixteenth Amendment to the U.S. Constitution was ratified by states in 1913 and authorizes Congress to levy a graduated income tax, which led observers to conclude the exemption granted in the Pollack decision no longer was valid. However, the Court continued the exemption in 1916 in Brushaber v. Union Pacific Rail Road Company.13 The Court in the twentieth century commenced to make a distinction between governmental and proprietary functions of subnational governments, thereby narrowing the doctrine of intergovernmental tax immunity. Governmental functions are traditional ones such as police and fire protection, and proprietary functions are newer ones, such as rubbish collection and disposal, that can be performed by private business firms. The Court in 1905 in South Carolina v. United States opined that a state-owned system of liquor retail stores was subject to national taxation since the state was operating an

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“ordinary private business.”14 Subsequently, the justices ruled that Congress could tax a state-owned bank, a city-owned street railway, public wharfs, and state college football games. The Court in New York v. United States in 1946 upheld the levy of a national excise tax on mineral water bottled by the State of New York on the ground the state enterprise competes with private mineral water firms, and Congress had decided mineral water should be taxed to provide revenue for the national government.15 Nevertheless, the Court ruled in favor of intergovernmental tax immunity in specific cases. In 1922, the Court in Gillespie v. Oklahoma held that a state could not levy its income tax on profits earned by a private firm on Indian lands leased from the national government.16 The Court in Panhandle Oil Company v. Knox in 1928 opined a state may not tax sales made by a private firm to the national government and issued a similar ruling in 1931 in Indian Motorcycle Company v. United States by holding that a national tax cannot be applied to the sale by a private firm to a state government.17 The justices in the late 1920s and early 1930s commenced to reduce the intergovernmental tax immunities scope by sustaining in 1926 a state tax on the income of firms holding contracts with the national government and in 1931 a state income tax on capital gains made from the sales of federal government bonds.18 The Court in James v. Dravo Contracting Company in 1937 validated a state gross receipts tax on a firm’s contracts with the federal government.19 The Court further narrowed intergovernmental tax immunity in Helvering v. Gerhardt in 1938 by allowing the federal income tax to be applied to the salaries of employees of the Port of New York Authority, created by a 1921 interstate compact entered into by New Jersey and New York, and ruling their activities were similar to those of employees of private firms.20 The justices in Graves v. New York in 1939 reversed the Court’s previous decisions to the extent that they recognized “an implied constitutional immunity from income taxation of the salaries of officers or employees of the national or a State government or their instrumentalities.”21 Congress enacted the Public Salary Act of 1939 expressly authorizing federal taxation of the salaries of subnational government officers and employees, and subnational governments to tax in a nondiscriminatory manner the salaries of national government officers and employees.22 The Buck Resolution of 1940 extended state sales, use, and income taxes to persons residing or doing business on federal properties.23 The Graves decision by extension suggested the Court would uphold imposition of the national income tax on interest received by holders of bonds issued by state and local governments. This tax exemption permits subnational governments to borrow funds at lower than the market rate of interest and is a very valuable federal government subsidy (see below).

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A state or a local government may tax a federal instrumentality if authorized to do so by Congress, thereby overruling the cited Supreme Court decisions. The Court in 1866 in Van Allen v. Assessors and in 1926 in First National Bank v. Anderson validated congressional acts permitting states to tax the shares of national banks in a nondiscriminatory manner.24 Nevertheless, no state or local government may tax a federal instrumentality if Congress specifically has granted it an exemption from subnational governmental taxation. The U.S. Supreme Court’s distinctions between governmental and proprietary functions of a state in determining whether a national tax is constitutional do not apply to federal governmental activities. The Court in Graves v. New York noted in 1939 that the national government “derives its authority wholly from powers delegated to it by the Constitution,” and hence “its every action within its constitutional power is governmental action.”25 This decision, however, did not grant a nationally chartered corporation an exemption from a state or a local government tax. Such a corporation has tax immunity only if Congress expressly grants such immunity. State Taxation of Nonresident Income A federal system automatically presents the possibility that a state might tax the income of nonresidents. The U.S. Supreme Court in 1920 in Shaffer v. Carter opined Oklahoma constitutionally could tax a nonresident’s net income derived from sources within the state and dismissed summarily the argument that the tax imposed an undue burden on interstate commerce.26 The Court in Travis v. Yale & Towne Manufacturing Company issued a similar ruling by holding a state may tax nonresidents and limit their deductions to ones related to the production of income subject to the tax.27 Should two or more states levy a personal and/or corporate income tax, the problem of multistate taxation of the income of an individual or a firm is compounded. Many states entered into reciprocal income tax agreements exempting nonresidents from paying the tax to prevent double taxation of income. Other states lightened the burden upon their taxpayers by allowing them a credit for income taxes paid to sister states. The equal protection of the law clause of the Fourteenth Amendment to the U.S. Constitution is applicable to state taxation of nonresident income. New Hampshire levied an income tax on nonresidents who work in the state. Responding to a taxpayer’s challenge of the constitutionality of the tax, the U.S. Supreme Court in Austin v. New Hampshire, in 1975 invalidated the tax because New Hampshire residents were exempt from the tax and hence nonresidents were deprived of equal protection of the laws.28

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Developing a fair system of state income taxation is a complex task given the large number of business firms operating in multiple states. Each state utilizes separate accounting, specific allocation, and/or formula apportionment to determine its share of a multistate firm’s income to tax. The first method has limited applicability because of the difficulty of separating income earned in a state from income earned in sister states or in other nations. Specific allocation also has limited applicability and provides that certain types of income, such as interest, must be allocated to a single state and cannot be divided among states. States levying an income tax rely principally upon formula apportionment, that is, a method employing a formula to determine a firm’s income earned within a state. The formula typically is based upon payrolls, property, and sales within the state and is employed to determine a ratio between a firm’s income earned in the state versus its multistate income or multinational income. The definition of taxable income varies from state to state since states employ different apportionment formulas. The British, Japanese, and other governments strongly protested state taxation of the worldwide operations of their respective multinational corporations. In response, the 1986 California state legislature enacted a law modifying the system of taxation by allowing multinational corporations to change from the worldwide taxation system to a water’s edge taxation method. Under the latter, only the United States earnings of a corporation are taxed and the tax is based upon the size of the corporation’s operations in California. The British government objects to the this system because restrictions of the law and the election fee of 0.03 percent of the corporation’s payroll, property, and sales make it difficult for many corporations to shift to the new system. California levies a franchise (income) tax on corporations based upon the worldwide earnings of multinational corporations, instead of their earnings within the state, by utilizing a unitary business formula apportionment method. The state first determines a corporation’s total earnings including its California operations and develops an allocation fraction for the corporation by taking an unweighted average of three ratios: California payroll to worldwide payroll, California property value to total property value, and California sales to total sales. The state multiplies the taxpayer’s allocation fraction by the total income of the unitary business to determine the corporation’s taxable income allocable to California. Alcan Aluminum Limited, a Canadian company, and Imperial Chemical Industries PLC, a British company, brought a constitutional challenge to California’s franchise tax in the U.S. District Court for the Northern District of Illinois, but the challenge was dismissed.29 The decision was appealed to the U.S. Court of Appeals for the 7th Circuit, which reversed the decision.30

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The U.S. Supreme Court, on appeal, opined the corporations had standing to bring suit under Article III of the U.S. Constitution, but such suits were barred by the Tax Injunction Act of 1937.31 New Jersey employed the unitary tax system to assess the Bendix Corporation for taxes on income derived from a gain arising from the sale of stock in another corporation. The U.S. Supreme Court in 1992 upheld the constitutionality of the tax system, but directed the state to refund the tax on the capital gain on the ground a state may not tax a nondomiciliary corporation’s income derived from an unrelated business activity including stock sales.32

National Financial Assistance The unicameral Congress under the Articles of Confederation and Perpetual Union enacted the Land Ordinance of 1785, popularly known as the northwest ordinance, reserving one square mile in each township for educational purposes in the area covered by the ordinance.33 The original thirteen states incurred substantial debts in financing the Revolutionary War and the Constitutional Convention of 1787 considered and rejected a proposal to have the proposed new national government assume the debts of the states. Congress in 1790, however, enacted a statute providing for assumption of state debts by the national government.34 Categorical Grants-in-Aid As noted, Congress in 1808 enacted the first categorical grant-in-aid program by appropriating $200,000 annually to help finance the cost of arming and equipping state militias.35 Congress subsequently provided financial assistance to states for construction of post roads and canals, but presidents, commencing with James Madison, vetoed bills providing such assistance. In 1837, Congress enacted a statute distributing the national government’s surplus funds to states in the form of unconditional cash grants.36 The 1803 enabling act admitting the Ohio territory into the union as a state, as noted, granted land to the state and stipulated one section of land in each local government must be reserved for school purposes.37 A similar act, admitting the Illinois territory into the union as a state, provided that 5 percent of the net proceeds of lands sold by Congress within the state must be dedicated to the construction of roads and “encouragement of learning.”38 Congress subsequent to 1848 commenced to reserve two sections of land for schools and later reserved four sections of land in admitting Arizona, New Mexico, and Utah as states into the Union.

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In 1850, Congress granted swamp lands to states and in 1862 enacted the Morrill Act granting lands to states for the purpose of establishing colleges of agriculture and mechanical arts.39 States initially exercised their reserved powers without any congressional restraints other than implementation of the categorical purpose of a national grant. In 1866, the U.S. Supreme Court in McGee v. Mathias ruled the acceptance by a state of a grant for a specific purpose is a binding contract protected against infringement by the contract clause of the U.S. Constitution.40 This opinion, however, did not end the controversy over the constitutionality of attached grant conditions. The Court in Massachusetts v. Mellon in 1923 upheld as constitutional conditions attached by Congress to a 1921 maternity act requiring states accepting a grant to exercise their reserved powers to comply with the conditions.41 Conditional Grants-in-Aid Continuing national grants-in-aid to states with conditions originated in the Hatch Act of 1887 authorizing grants to establish agricultural experiment stations at state colleges of agriculture.42 The first condition, other than a purpose, is the requirement in the Carey Act of 1894 of state preparation of a comprehensive plan for irrigation of arid land to ensure the federal funds are expended in the most economical and effective manner.43 Grants-in-aid typically require the recipient state or local government to provide matching funds, most commonly on a two-thirds national and one-third state or local government basis. The matching fund requirement dates to the Weeks Act of 1911 authorizing grants for state forestry programs.44 Included in the act is a new condition authorizing national government officers to inspect state programs financed in part with national funds. The Federal Road Aid Act of 1916 contained the first single state agency requirement; that is, the grant-in-aid must be administered by only one state agency.45 Many state officers, particularly governors, object to the requirement by maintaining that it limits their ability to organize the state governments in the most economical and efficient manner. The act was amended in 1921 to broaden the influence of the national government by authorizing the secretary of agriculture to evaluate the competence of state highway departments receiving federal grants.46 As Congress increased the amount of federal grants for highway construction, members became concerned that states would divert revenue produced by their highway user taxes to other purposes. A maintenance-of-effort provision to prevent such a diversion was included in the Hayden-Cartwright Act of 1934 and penalizes a state for such diversions by withholding one-third of the federal highway aid a diverting state is eligible to receive.

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Historically, subnational government positions generally were filled by political patronage rather than by the criterion of competence. Congress concluded that competent and politically neutral employees did not always administer subnational programs financed in part with national funds. In consequence, a provision was included in the Social Security Act of 1935 stipulating state and local government employees administering programs with funds provided by the act must be selected and promoted on the basis of merit.47 To ensure incompetent subnational governmental employees did not waste federal grant funds, Congress enacted the Hatch Act of 1939 and the Hatch Act of 1940 prohibiting employees of subnational governments to engage in partisan political activities if national funds finance any part of their salaries.48 Conditions-of-aid, however, are programmatic in nature and relate to specific programs in contrast to conditions referred to above that generally apply to all or most national grant-in-aid programs. Many programmatic conditions attached to grants are controversial. The Federal Grants-in-Aid Explosion National government receipts and expenditures historically were a fraction of the revenues and expenditures of subnational governments with the exceptions of war periods. As late as 1929, federal expenditures were only 35 percent of the combined state and local government expenditures and federal tax receipts were only slightly higher. With the exception of highway aid, federal grants were relatively unimportant in 1929. The Great Depression of the 1930s produced a dramatic change in the nature of the intergovernmental fiscal system. Congress has become a generous supplier of funds to subnational governments and in fiscal year 2007 appropriated $444 billion in grants to subnational governments. The great growth in the number of conditional congressional grant-in-aid programs and the popularity of the programs in most states allow Congress to exercise considerable influence over numerous state-administered regulatory and service providing programs. There are two types of national categorical grants-in-aid. Formula grants provide for distribution of funds to state and local governments by means of a formula containing several factors, such as population, urban population, and per capita income. Project grants, in contrast, are designed to aid capital construction projects such as sewage treatment plants and light rail systems. National cash grants-in-aid to states were not an important source of state revenue prior to 1916 as all national financial assistance to states totaled less than five million dollars in 1915.49 Federal grants to states increased sharply with the enactment of the Federal Road Aid Act of 1916 and averaged

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$100 million annually between 1918 and 1930, or approximately 3 percent of national appropriations.50 The Great Depression, commencing in 1929, generated serious economic and social problems and induced Congress to authorize a relatively large number of new grant-in-aid programs during the 1930s, increasing the amount of aid to nearly 10 percent of annual congressional appropriations. These programs, primarily social welfare, were designed to persuade states and/or most local governments to administer the new national programs. Until 1937, all national grants-in-aid were made only to state governments. The United States Housing Act of 1937 inaugurated a major change in intergovernmental relations by authorizing direct federal grants-in-aid to local governments.51 The trend toward establishment of direct national-local fiscal relations became more pronounced when twenty-three of thirty-eight federal grant programs enacted between 1961 and 1967 bypassed states. The establishment of such direct relations was attributed by several observers to the failure of state governments to assume their responsibilities and to play a major partnership role in the federal system. This charge, however, does not apply to all states, and states, such as California and New York, launched urban programs subsequently adopted by Congress. The U.S. Advisory Commission on Intergovernmental Relations studied direct national-local grants-in-aid programs and recommended in 1970 that states should create appropriate administrative machinery and buy into federal-local programs by providing at least one-half of the nonfederal share of the funds to counter threatened diminution of state government significance in the federal system caused by establishment of direct federal-local fiscal relations.52 The commission was convinced administration of intergovernmental programs would be improved by state participation, which, in turn, would strengthen states as partners in the federal system. The recommendation was adopted by most states and they provide one-half of the nonfederal funds for many federal grant programs. Congress authorized nineteen new programmatic categories of aid in fiscal years 1946 to 1959. The number of grant programs commenced to increase sharply in fiscal year 1960 and the total amount of grants rose annually by 15 percent from seven billion dollars to ninety-one billion dollars in fiscal year 1980. Of the ninety-five programmatic categories authorized between 1950 and 1979, thirty-nine were authorized between 1961 and 1966. Special interest groups with narrow goals found Congress to be very responsive to their requests. Classification of federal grants-in-aid by functions reveals significant shifts in the nature of the aid over time. The first cash grants were designed primarily to promote agriculture and include the Federal Road Aid Act of

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1916, popularly known as the farm to market road act, and there was a sharp increase in grants for highways during the 1920s. A new program—social services—was established by the Social Security Act of 1935 and grew rapidly in importance. Approximately 60 to 65 percent of all grants awarded between 1950 and 1955 were for health, labor, and welfare. The National Interstate and Defense Highways Act of 1956 authorized the largest amount of funds for highway grants-in-aid.53 President Lyndon B. Johnson in the 1960s shifted the focus of grant-in-aid programs as his “Great Society” programs concentrated on health, labor, and social welfare. Congress subsequently increased sharply grants for public education and the War on Terrorism prompted Congress to appropriate grant funds to assist state and local governments to counter the threat of terrorists. Similar federal grants are administered by more than one state agency in a number of states. Carl W. Stenberg, former executive director of the council of state governments, attributed “the presence of so many separate or functionally related programs administered by various agencies” to “differences in individual missions and clienteles.”54 The overlapping grant programs have been subjected to considerable criticism.

The Grants-in-Aid Controversy Although opposition to grants-in-aid dates to the nineteenth century, it was the proliferation of new grant programs in the first half of the twentieth century that generated major controversies. Opponents of federal grants in the 1920s charged that national bureaucrats were dictating what the sovereign states must do, grants are bribes to induce state and local governments to implement national policies, the taxing power was divorced from the spending power, and the grants-in-aid system redistributes money from wealthy states to poor states. The Indiana state legislature in 1947, for example, expressed an ideological objection by declaring “we propose henceforward to tax ourselves and take care of ourselves. We are fed up with subsidies, doles, and paternalism. We are no one’s stepchild. We have grown up. We serve notice that we will resist Washington, D.C. adopting us.”55 Proponents of national grants rejected the charges and argued that grants and attached conditions improve the administration of state and local government programs, enhance tax equity by redistributing national tax resources in part on a need basis, assist subnational governments to finance programs they otherwise could not finance, and promote intergovernmental cooperation in the provision of services.

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The more recent critical arguments emphasize reduction in the discretionary authority of subnational governments, less economy and efficiency in the provisions of the aided services, programmatic accountability problems, lack of citizen understanding of the responsibilities of the various involved governments, and failure of many grant programs to achieve their stated goals. Newer Criticisms The U.S. Advisory Commission on Intergovernmental Relations in 1978 noted that “at least through the 1950s, federal assistance activities were confined by an effort to restrict aid to fields clearly involving the national interest or an important national purpose.”56 The commission explained that subsequent to 1965 national interest no longer was the basis for grants with “any action passed by both legislative chambers and signed by the President being accepted as appropriate.”57 The major criticisms of national grant-in-aid programs address (1) reduction in the discretionary authority of subnational governments, (2) program dominance by national bureaucrats, (3) strengthened position of the state governor versus the state legislature (see chapter 2), (4) greater freedom of subnational bureaucrats from control by elected state and local government officers, (5) distortions of subnational government budgets as nonfederal funds are employed to match federal grants, (6) matching requirements’ promotion of additional spending by state and local governments, (7) lack of effective congressional review of proposed grant programs advocated by politically strong interest groups, (8) conflicting grant programs objectives, (9) duplicative and overlapping grants-in-aid, (10) voluminous national administrative rules and regulations, (11) inadequate opportunity for state and local governments to influence the drafting of national grant-in-aid regulations, (12) complex and costly grant applications procedures, (13) inflexible programmatic conditions preventing needed adjustment of programs to changed circumstances, (14) the single agency requirement, (15) expensive changes in the conditions-of-aid after subnational governments apply for and accept grants-in-aid, and (16) a serious accountability problem. Stenberg noted that “the highly fragmented intergovernmental assistance program provides many buck-passing opportunities. Local officials can always blame the ‘feds’ for unpopular actions or policy decisions such as fair share housing programs or community-based corrections projects. Both can criticize the insensitivity, unwillingness, or inability of some States to provide needed assistance or authority to their local governments.”58 The conflicting goals of grant programs are highlighted by the public transit system program seeking to encourage travel by bus and subway systems and the interstate highway grant program promotion of suburban develop-

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ment and the need for suburban residents to travel by private motor vehicles. Subnational government officers object strongly to Congress changing conditions-of-aid after their governments accepted grants-in-aid. Congress in 1990, for example, expanded the coverage of the Medicaid program, thereby increasing sharply costs state and/or local governments must finance. W. Brooke Graves, a leading federalism expert, acknowledged in 1964 the grant-in-aid programs have disadvantages, yet added: The impartial observer must admit that grant funds have helped many states both to inaugurate many new programs and to expand existing programs which would not otherwise have been undertaken. He must admit also that the grant system has had a centralizing influence, which may be good or bad according to one’s point of view, and that it has tended to promote uniformity among the States. National grants have established national programs which have to be administered in accordance with national standards, which are to a large extent determined and agreed upon by a process of mutual accommodation. Even so, administrative responsibility has remained, to a considerable extent, in the hands of State and local officials.59 Another federalism expert, David B. Walker, drew different conclusions in 1981 and maintained the servicing system is overloaded and dysfunctional: “In broadly systemic terms, this has arisen because of the ever-expanding role of the national government in regulatory, promotional, and aided program undertakings of both a major and minor nature, because subnational governments and other intermediate instrumentalities are relied upon to implement many of the national government’s regulatory policies and practically all of its service-related programs.”60 Subnational government officers also objected to the thirty-one crosscutting conditions attached to all programs by 1980. These conditions—such as affirmative action promoting the hiring of members of specified minority groups and women as employees, citizen participation, payment of prevailing wages in an area on grant-aided projects, and environmental protection—are designed to promote achievement of social goals and are not related directly to the specific purpose of a categorical grant, and reduce significantly the discretionary authority of recipient governmental units. National Administrative Responses to the Criticisms President Lyndon B. Johnson responded to the criticisms of federal grant-in-aid programs and initiated new organizations and procedures. To help solve the intergovernmental communications problem, he designated in 1965

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the Office of the Vice President as the contact point for officers of local governments and the Office of Emergency Preparedness in the executive office of the president to perform a similar function for governors. President Richard M. Nixon by executive order established in 1969 an office for intergovernmental relations under the vice president’s supervision to assist state and local governments. Interagency agreements were signed outlining the respective responsibilities of each signatory and providing for ongoing consultation to improve coordination between federal administrative departments and agencies. The hundreds of grant-in-aid programs were listed in separate catalogues issued by each department and agency, thereby making it difficult for subnational government officers to determine the types of available grants. To solve this problem, the Office of Economic Opportunity in 1967 was made responsible for publishing a consolidated catalogue of all grant programs; the responsibility subsequently was shifted to the Office of Management and Budget. The Vice-President’s Handbook for Local Officials also was prepared and distributed throughout the nation. In 1967, President Johnson directed the Bureau of the Budget (now Office of Management and Budget) to examine the possibility of consolidating categorical grant programs, simplifying grant application procedures and financial accounting, and changing the location and structure of federal regional offices. Upon assuming office in 1969, President Nixon initiated several administrative actions to solve problems identified by critics of the national grant-in-aid system. He ordered decentralization of decision making by field units of national departments and creation of ten standard national regions and federal regional councils composed of national officers administering grant programs in each region. He also directed the Office of Management and Budget to issue circular A-102 to improve the grant application process and management of grants-in-aid. The president’s major federalism initiatives were his proposed special revenue sharing and general revenue sharing programs, which are examined in the following two sections. President James E. Carter (1977–81), a former governor of Georgia, expressed interest in improving intergovernmental relations, yet actions he initiated made only small changes in the intergovernmental system. In 1981, Walker concluded that “the confused and conflicting effects of Carter’s managerialism, proceduralism, fiscal conservatism, and program flexibility underscore the absence of any consistent theory of federalism or approach to intergovernmental relations in his administration.”61 Governor Ronald Reagan of California stressed in his 1980 presidential election campaign the overcentralization of political power in the national

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government and excessive national governmental regulation, and pledged to return power to the states. Nevertheless, he was Janus-faced and approved ninety-two preemption acts removing completely or partially regulatory authority from subnational governments.62 Upon assuming office in 1981, one of President Reagan’s first administrative actions was the appointment of a presidential task force on regulatory relief which issued its report in 1983. He issued Executive Order number 12291 on February 17, 1981, directing that all proposed and final regulations be submitted to the Office of Management and Budget for review prior to publication in the Federal Register. In 1981, President Reagan also issued Executive Order number 12303 establishing the Presidential Advisory Committee on Federalism and directing it to advise him relative to federalism policy. His 1982 Federalism Executive Order, number 12372, is designed to provide state and local governments with additional opportunities to influence the federal administrative decision-making process. The office of management and budget released in 1983 a revised circular A-102 establishing uniform requirements for grants to subnational governments and reducing the burden of federal government audits upon these governments. President Reagan issued Executive Order number 12498 of 1985 establishing a regulatory planning process by directing each national department and agency to submit to the Office of Management and Budget a statement listing goals and policies for the forthcoming year to assist the office in developing a regulatory program on an annual basis. In 1987 he issued Executive Order number 12612 containing fundamental principles emphasizing dual federalism. The order concludes that “in the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual states.” This order contains criteria that must be followed by department and agencies relative to preemption. Many consider his most important initiative to be the speeding up of the process of federal agency delegation of regulatory primacy to the states under partial preemption statutes establishing minimum national standards (see chapter 2). The statutory requirements are not modified by the delegation, but the states acquire additional discretionary authority in administering the regulatory programs relating to standards for air, safe drinking water, surface mining, and water quality. Federal government oversight of state regulatory activities under partial preemption statutes was reduced and a number of national regulatory standards were relaxed. For example, the U.S. Environmental Protection Agency promulgated a regulation allowing a state to employ the “bubble” concept in determining whether changes in a stationary source within an

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industrial plant met the requirements of the Clean Air Act; that is, air pollution emissions are measured on a plantwide basis instead of an individual source basis. Although important, we classify the administrative actions initiated by President Reagan as limited responses to the complaints of state and local government officers. His proposal for congressional creation of block grants and the general revenue sharing program were most important in terms of broadening significantly the discretionary authority of subnational governments. Block Grants Subnational government officers in particular objected to categorical grants-in-aid with attached conditions because their discretionary authority is reduced, and many argued that the grant of greater discretionary authority in the form of block grants, which fold several categorical grants into one grant, would facilitate achievement of national programmatic goals with fewer dollars. The first Hoover Commission on the organization of the executive branch of the national government in 1949 recommended that “a system of grants be established based upon broad categories . . . as contrasted with the present system of extreme fragmentation,” yet the first block grant program was not established by Congress until 1966 when the Partnership for Health Act was enacted.63 The second block grant program was authorized by the Omnibus Crime Control and Safe Streets Act of 1968. Critics, however, argued that Congress shortly thereafter commenced to add categories to the program, which resulted in it becoming “a closely related set of categorical grants masquerading under a block grant guise.”64 In 1972, President Richard M. Nixon proposed four modified block grant programs labeled “special revenue sharing” and Congress enacted one of the programs—community development—into law in 1974.65 Popularly referred to as the Community Development Block Grant program (CDBG), it differs from a conventional block grant program in four respects: (1) The eligible government is required only to submit a simple application; (2) The department of housing and community development cannot reject the application; (3) The recipient local government is not subject to administrative audits by the department; and (4) Matching and maintenance-of-effort requirements do not apply to the program. Thirty-two categorical grant-in-aid programs were consolidated into block grants or a special revenue sharing program between 1966 and 1974, and Congress authorized new block grant programs—insular areas, elderly,

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and forestry—in 1977 and 1978. Congress terminated the law enforcement block grant program in 1980, but President Reagan in 1981 persuaded Congress to enact the Omnibus Budget Reconciliation Act establishing nine new or modified block grant programs by merging fifty-seven categorical grant-in-aid programs.66 These block grant programs repealed the complex and lengthy rules and regulations promulgated by national departments and agencies for implementation of the fifty-seven categorical grant-in-aid programs. Block grant programs’ implementing regulations are short and not complex. In 1984, President Ronald Reagan reported that the paperwork burden of state and local governments had been reduced by 90 percent subsequent to establishment of the new block grants in 1981 and that the rules and regulations covered only thirty-two pages in the Code of Federal Regulations. General Revenue Sharing The national financial assistance program most popular with subnational governmental officers was the entitlement general revenue sharing program since it permitted recipient units the greatest degree of discretionary authority in spending the funds. Congress enacted the State and Local Fiscal Assistance Act of 1972 at the urging of President Nixon and appropriated $30.2 billion to be distributed to the fifty states and approximately 38,000 general purpose local governments over a five-year period with few attached conditions.67 Recipient governments could spend the funds for any legal purpose, but could not spend funds for discriminatory purposes. The program strengthened the ability of subnational elected officers to control bureaucrats as they cannot spend general revenue sharing funds without an appropriation by the state legislature or local governing body. National categorical grant-in-aid programs, in contrast, promote intergovernmental functional contacts and enhance the position of bureaucrats on all planes of government involved in the administration of a given program. The entitlement program did not require eligible units to apply for the funds, meet a maintenance-of-effort requirement, appropriate matching funds, or be subject to federal administrative audits. Congress reauthorized the program in 1976, but in 1980 excluded from the program states that had been receiving one-third of the funds. Congress in 1986 terminated the program because of the sharply escalating national budgetary deficit. The program, according to a U.S. Bureau of the Census report, provided a significant proportion of the funds expended by several cities—Baton Rouge, Louisiana (10.8 percent); Miami, Florida (9.7 percent); New Orleans, Louisiana (7.8 percent); Pittsburgh, Pennsylvania (6.4 percent); and El Paso, Texas (6.2 percent).68

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Revenue sharing opponents advanced four major arguments. First, they contended the political accountability maxim is violated since the units spending the funds are not responsible for raising the funds. Critics in particular asked: To whom are local government officers responsible for spending the funds received from the national government? Second, a U.S. General Accounting Office report concluded that “there was no observed tendency to target more aid to governments with high fiscal pressures.”69 Wealthy local governments received general revenue sharing funds on the same basis as poor municipalities. Third, proponents of mergers of small local government argued the program shored up small local governments that otherwise would have been merged with other local governments, thereby simplifying the fragmented local governmental system and making it more cost effective. Midwest townships, many of which are little more than bridge and highway districts, and New England counties with limited court-related, law enforcement, and welfare functions were cited as examples of governments that should be merged or abolished with their functions transferred to other governments. Approximately one-third of the eligible local governments were limited purpose rather than general purpose units. Fourth, critics maintained the program did not benefit poor citizens whose interests would have been more effectively served by targeted categorical grant-in-aid programs. Post-Reagan Responses Presidents George H. W. Bush, William J. Clinton, and George W. Bush failed to respond to complaints of subnational officers by launching major new initiatives. The increasing national budgetary deficit and the long-lasting recession, particularly in the northeast, that commenced in 1989 limited the intergovernmental financial role of the first president Bush. He approved thirty-four preemption bills, but only the Clean Air Act Amendments of 1990 had a major impact on subnational governments.70 President Clinton, a former governor of Arkansas, also was constrained by the budgetary deficit and recession during his early years in office. He issued Executive Order 12866 directing regulatory departments and agency to initiate planning for regulatory relief and Executive Order 12875 establishing a national-state-local governmental consultation process relating to promulgation of rules and regulations impacting subnational governments. Clinton approved sixty-four preemption bills, but only the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, Telecommunications Act of 1996, and Gramm-Leach-Bliley Financial Modernization Act of 1999 had a major impact on subnational governments.71

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President George W. Bush, a former governor of Texas, on February 26, 2001, issued a memorandum establishing an interagency working group on federalism, but no record indicates that it met.72 The September 11, 2001, terrorists’ attacks and the wars in Afghanistan and Iraq diverted his attention away from a number of domestic issues. He approved 103 preemption bills in the period 2001–08 including the three Internet Tax Freedom Acts that prevent states from levying Internet access taxes.73 The other preemption acts involved the periphery of state-exercised powers in comparison with sixteen major preemption statutes enacted between 1965 and 1999 including the Water Quality Act of 1965 and the Gramm-Leach-Bliley Financial Modernization Act of 1999.74 Other Federal Financial Assistance The national government provides financial assistance to state and local governments, directly and indirectly, by allowing national taxpayers, not subject to the alternative minimum tax, to deduct from their gross income for federal tax purposes certain taxes paid to subnational governments and exclude the interest received on state and local government bonds (collectively referred to as municipal bonds) from the national income tax. In addition, the national government provides insurance coverage, services including training of subnational personnel, and technical assistance to subnational governments. Tax Deductions Congress for many years allowed most subnational taxes to be deducted from a taxpayer’s gross income for federal income tax purposes. State and local governments benefit from such deductions as they can levy higher taxes without the entire burden of the increase falling upon taxpayers. In 1943, Congress repealed the authorization for the deduction of several state and local government excise taxes and ended in 1964 deductions for state and local excise taxes on alcohol and tobacco products, and operator and motor vehicle registration fees. Congress in 1979 eliminated state motor fuel taxes as a deduction. The national budgetary deficits increased sharply during the cold war of the 1980s and Congress in 1986 decided to phase out the deductibility of state and local government sales and use taxes. All sales taxes originally were fully deductible, but the percentage was reduced annually with only a 10 percent deduction allowed in 1990, the last year in which a deduction was permitted. Subnational income and property taxes remain fully deductible.

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In 1985, President Reagan recommended congressional repeal of the authorization for deductibility of subnational taxes. State and local government officers expressed alarm at the proposal and predicted it would result in sharp reductions in state and local government services, higher subnational governmental taxes, or both. The proposal would benefit states with low taxes and expenditures, such as New Hampshire and Wyoming, and low-income taxpayers who do not itemize deductions on their income tax returns. States with high taxes and expenditures, such as New York, and high-income taxpayers would be affected adversely under the Reagan proposal. Estimates in 1985 suggested repeal of deductibility would result in a national income tax increase per itemizing taxpayers, ranging from $322.81 in Wyoming to $1,646.16 in New York. Taxpayers in fifteen states, according to estimates, would pay more than one-half the money raised by eliminating deductibility. The recommendation would reduce the size of the huge national deficit by removing an indirect subsidy, referred to as tax expenditures, and pressure state and local governments to curtail spending or risk the wrath of citizens by increasing taxes. Twenty-four states have the direct or indirect initiative allowing voters to place proposed laws and/or constitutional amendments on the referendum ballot by petition, and fears were expressed a tax increase resulting from elimination of deductibility undoubtedly would stimulate initiated tax revolts.75 The Omnibus Budget Reconciliation Act for Fiscal Year 1990 limited the amount of state and local income and property taxes that may be deducted by individuals with incomes exceeding $100,000 per year.76 Tax-Exempt Municipal Bonds Interest income derived from bonds issued for public purposes by state and local governments are exempt from the U.S. income tax. As noted, the U.S. Supreme Court in 1829 opined that obligations of the U.S. government cannot be taxed by states and in 1895 extended the ruling by declaring Congress could not tax interest received by holders of municipal bonds. The Sixteenth Amendment, ratified in 1913, reversed this decision by authorizing Congress “to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” Congress, however, has not levied the income tax on municipal bond interest. State and local governments have been issuing bonds at an escalating rate for decades. The tax exemption of recipients’ bond interest is a valuable indirect subsidy to state and local governments allowing them to borrow funds at a rate of interest significantly lower than the market rate of interest on taxable private bonds, thereby benefiting subnational governmental

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taxpayers. This tax exemption has been criticized strongly on the ground that wealthy citizens are the principal beneficiaries. The resulting loss of national government revenue persuaded Congress to enact the Revenue and Expenditure Control Act of 1968 removing the exemption from industrial development bonds issued to finance projects benefiting private persons or organizations.77 The Mortgage Subsidy Bond Tax Act of 1980 placed limits on the prices of homes financed in part by tax-exempt bonds and restricted mortgages to first-time buyers of a single-family home.78 The Social Security Act Amendments of 1983 indirectly made tax-exempt interest received by retirees subject to income taxation by including the interest in the calculations of a social security recipient’s income and taxing a portion of the social security payments under a formula related to that income.79 The Deficit Reduction Act of 1984 placed additional restrictions upon the use of tax-exempt municipal bonds for financing industrial development, including volume limitation on certain types of industrial development bonds and student loan bonds within each state.80 In 1986, Congress enacted the Tax Reform Act imposing comprehensive restrictions on use of tax-exempt municipal bonds.81 These securities no longer can be used to finance convention centers, industrial parks, sports facilities, air and water pollution control facilities, and privately owned transportation facilities. In 1987 and 1988, Congress imposed additional restrictions upon the use of tax-exempt bond proceeds. State and local governments issuing municipal bonds often earned an arbitrage profit by reinvesting the borrowed funds for a period of time in private securities paying a rate of interest higher than the interest paid on the municipal bonds. The Tax Reform Act of 1986 recoups the profits by requiring these governments to remit such profits to the U.S. Treasury.82 The constitutionality of this act was challenged in court as violating the rights of states under the Tenth Amendment to the U.S. Constitution. The U.S. Supreme Court in 1988 opined in South Carolina v. Baker “that subsequent case law has overruled the holding in Pollock that state bond interest is immune from a nondiscriminatory federal tax” and added that the 1895 Pollock ruling had not been overruled explicitly simply because Congress exempted municipal bond interest from taxation since 1913.83 Congress has continued the tax exemption. Tax Credits The first national tax credit program was authorized by the Revenue Act of 1926,which provided eligible taxpayers with an 80 percent credit against the national inheritance and estate tax for a similar tax paid to a state.84

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Congress employed the tax credit device to encourage each state legislature to enact a uniform inheritance and estate tax based upon the national tax. Taxpayers in a state would be required to pay the total national tax as well as the state tax in the event the state legislature failed to adopt a state tax linked to the national tax. Congress decided that a system of unemployment compensation should be operated by each state and enacted the Social Security Act of 1935 authorizing a 90 percent tax credit for employers who pay unemployment taxes to a state.85 In consequence, employers are required to pay only 10 percent of the national tax if each concerned state has an unemployment compensation system and taxes levied at the same rate as the national tax. The short-lived Economic Tax Recovery Act of 1981 authorized urban public transit authorities to utilize sale-leasebacks as a device for selling their investment tax credits and depreciation allowances.86 The act, for example, authorized a private corporation to purchase buses from a public transportation authority for ten million dollars by using two million dollars of its own funds and eight million dollars of the authority’s funds. The corporation, as holder of the title to the buses, may depreciate the total cost of the buses under the national corporate income tax as a deduction and lease the buses for a fee to the authority that is responsible for maintenance and operating costs. The authority gained two million dollars, and the corporation took advantage of tax-deductible payments and accelerated depreciation allowances over a five-year period under the national corporation income tax. Other Assistance Congress has been generous in loaning funds to subnational governments for construction of publicly owned college and university facilities, transportation systems, reconstruction after natural disasters such as floods and hurricanes, and emergency response services following the terrorists’ attacks on the World Trade Center in New York City and the Pentagon in Arlington, Virginia, on September 11, 2001. Furthermore, Congress guaranteed private loans made to state and local governments, thereby enabling them to borrow funds at a lower rate of interest. Congress, for example, in the mid-1970s guaranteed City of New York bonds totaling approximately $1.65 billion when it verged on the edge of municipal bankruptcy and the credit markets were closed to the city. Currently, seven national governmental agencies—Federal Emergency Management Agency, Environmental Protection Agency, National Fire Academy, Coast Guard, Department of Transportation, Department of Energy, and Department of Health and Human Services—fund or conduct training programs for state and local government emergency response personnel without charge.

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Many national agencies provide technical assistance to a wide range of governmental functions to subnational governments free of charge and the Federal Bureau of Investigation operates a national fingerprint service. Without the latter, criminal investigations by state and locals governments would be more costly and less effective. Federal Government Coercion The period since 1965 has witnessed Congress increasingly employing its powers of partial and complete preemption to mandate subnational governments to implement a specific policy or to prohibit the exercise of a reserved power by states and their political subdivisions. Furthermore, Congress has employed crosscutting sanctions, crossover sanctions, and tax sanctions to coerce these governments to implement national regulatory policies. Federal Mandates and Restraints Congress, commencing with the Water Quality Act of 1965, enacted preemption statutes containing mandates that are legal requirements that states and/or local governments must undertake specified activities or provide services meeting minimum national standards.87 State and local governments can avoid conditions-of-aid by not applying for or accepting a national grant-in-aid. On the other hand, a statutory mandate cannot be avoided. Similarly, judicial remedial mandates contained in U.S. district court orders requiring a state or a local government to initiate a new policy or program to remedy a past wrong can not be avoided. Today, federal statutory mandates are the principal irritants in national-subnational relations. Many mandates are expensive to implement, including the removal of asbestos from school buildings and possible filtration of drinking water. The cumulative effect of a large number of national mandates created a particularly difficult problem for a state or local government subject to a state constitutional requirement of operating with a balanced budget and/or within a constitutional debt limit. Small local governments often lack adequate tax resources to comply with environmental mandates that have high compliance costs, and the dissolution of many of these units may be encouraged. State and local government officers argue strenuously that Congress should reimburse their governments for implementing federal mandates, but Congress has ignored the appeals. The New York Times editorially noted: “Mandates often have perverse effect. They require local officials to spend local money on some worthy services at the expense of others, but take away the discretion as to which needs the money more. . . . Uncle Sam is in no position to balance these claims. Nor can he simply say, raise taxes. He does not know when local

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taxes become so onerous that taxpayers are driven out. Both tasks call for balancing that must be left to local politics.”88 Congress responded to complaints of state and local government officers by enacting the Unfunded Mandates Reform Act of 1995 that is prospective in nature and does not apply to preexisting mandates.89 The act established new procedures for any bill imposing a mandate, including preparation by the Congressional Budget Office of estimates of the cost of any mandate exceeding fifty million dollars during its first year, and allowing a member of either house to raise a point of order if a committee report fails to contain required information. In 2002, John C. Eastman concluded the act has been “very effective in imposing some much-needed discipline on Congress, but the exemptions . . . hamper its ability to achieve the kind of far-reaching reform that was its motivating purpose.”90 A restraint forbids a state or a local government to exercise a specific power. Preemption statutes have stripped subnational governments of authority to engage in economic regulation of airline, bus, and motor carrier firms. The Bus Regulatory Reform Act of 1982, for example, prohibits state issuance of a franchise to operate buses between two major cities conditional upon an agreement by the carrier to provide service to small communities.91 Many states subsidize the carriers to ensure such bus service. Crosscutting and Crossover Sanctions Two types of sanctions have been employed by Congress to increase its policy influence over state and local government programs. A crosscutting sanction is a condition, such as affirmative action, attached to all grant-in-aid programs. This type of sanction dates to a 1921 amendment to the Federal Road Aid Act of 1916 authorizing the secretary of agriculture to evaluate the competence of each state highway department receiving federal funds.92 A crossover sanction threatens a state failing to comply with a congressional statute with loss of federal grant-in-aid funds authorized by an earlier statute. The Arab oil embargo was the exogenous factor inducing Congress in 1974 to promote energy conservation by employing a crossover sanction to persuade each state to lower the maximum speed limit to fifty-five miles per hour by threatening to withhold 10 percent of its authorized federal highway aid.93 A 1975 statute provided for withholding of highway grant funds from a state failing to allow motorists stopped at a red traffic light to make a right turn if no motor vehicle is approaching the intersection from the left.94 In 1984, Congress decided to curb drunk driving by means of a crossover sanction threatening states with loss of highway funds if they do not increase their minimum alcoholic beverage purchase age to twenty-one.95 The constitutionality of the act was challenged by South Dakota, which

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maintained the act violated the Twenty-First Amendment to the U.S. Constitution devolving regulatory control of alcoholic beverages to states. In 1988, the U.S. Supreme Court upheld the constitutionality of the act.96 The State Comprehensive Mental Health Services Plan Act of 1986 requires states, with the assistance of national grants, to develop a state comprehensive mental health services plan. States failing to develop such a plan by September 30, 1989, had their alcohol, drug abuse, and mental health block grant reduced the following year.97 Congress included two similar crossover sanctions in the Transportation and Related Agencies Appropriations Act for Fiscal Year 1991.98 The first sanction is the withholding of 5 percent of a state’s federal highway funds if a state fails to impose a six-month suspension of the driver’s license of any person convicted of a drug offense, effective October 1, 1993, with the sanction increasing to 10 percent effective October 1, 1995. This sanction is a contingent one since it does not apply to a state if the governor submits to the secretary of transportation written certification that he/she is opposed to the enactment or enforcement of a mandatory suspension law and the state legislature has approved a resolution expressing its opposition to such a law. The second sanction is a 25 percent reduction in the funds that may be obligated for federal aid highways and highway safety construction programs for fiscal year 1991 in a state if it has a public authority responsible for public transportation in an urbanized area with a 1980 population of three million or more and by October 1, 1990, the laws of the state do not authorize a tax dedicated to paying the nonfederal share of public transportation projects or establishment of a regional or local tax for the same purpose. A third section in the statute continues the sanction for fiscal year 1992, but authorizes the waiver of the sanction if the governor certifies to the secretary of transportation that he/she is opposed to the levying of such a tax and it would not improve public transportation safety, and submits a written certification that the state legislature had approved a resolution opposing the levying of such a tax. To the amazement of observers, Congress included in the Department of Transportation and Related Agencies Appropriation Act for Fiscal Year 1992 a stipulation that the crossover sanction in the 1991 act should “be treated as having not been enacted into law.”99 Congress reinserted the sanction in the Transportation Equity Act for the 21st Century of 1998.100 Tax Sanctions The Tax Equity and Fiscal Responsibility Act of 1982 contains the first tax sanction and stipulates subnational governments must issue only registered municipal bonds, instead of traditional bearer bonds, or the interest received

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by bondholders will be subject to the federal income tax.101 In 1988, the U.S. Supreme Court in South Carolina v. Baker upheld the constitutionality of the sanction.102 The Tax Reform Act of 1986 contains a tax sanction mandating subnational governmental issuers of long-term bonds whose interest is exempt from the national income tax must rebate to the U.S. Treasury any arbitrage profit.103 The loss of revenue can be significant depending upon the spread between the interest cost of borrowing and the interest earned on borrowed funds invested in other securities until needed.

Summary Congress is free under the U.S. Constitution to levy any type of tax, but all duties and excise taxes must be uniform throughout the nation. States have broad reserved powers to levy taxes subject to the prohibition in Section 10 of Article I of the U.S. Constitution of the levying of a duty on tonnage or exports or imports without the consent of Congress. Nevertheless, state and U.S. courts have invalidated state and local taxes placing an undue burden on interstate commerce. The U.S. Supreme Court in the nineteenth century interpreted the U.S. Constitution as prohibiting states from taxing the national government and its instrumentalities or Congress taxing instrumentalities of states. In 1939, however, the Court reversed earlier decisions granting immunity from income taxation of the salaries of employees of the national government or state governments and their instrumentalities. State taxation of the income of nonresidents is subject to the equal protection of the laws clause of the Fourteenth Amendment. A particularly difficult problem is the development of an equitable state system of taxing the income of multistate and multinational corporations. The explosion in the number and dollar amounts of categorical grants-in-aid in the 1960s generated a major controversy and pressure for converting many of these grants into block grants. In 1966, Congress enacted the first block grant program and subsequently created other block grant programs. In general, these programs have achieved their goal of allowing states greater discretion in the spending of the grant funds. Congress directs a considerable amount of indirect financial assistance to subnational governments by authorizing U.S. departments and agencies to provide training and technical assistance to state and local government officers, allowing U.S. income tax deductions for income and property taxes paid to subnational governments, authorizing loans and insurance for state

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and local government loans, and other types of assistance including the national driver register (see chapter 3). The current principal irritants in national-subnational government relations are federal mandates, restraints, crosscutting sanctions, crossover sanctions, and tax sanctions. The large number of expensive national mandates has produced extensive lobbying by state and local government officers for national government reimbursement of mandated costs and the defeat of mandate bills in Congress. The increasing complexity of intergovernmental fiscal relations in the United States and Congress’ role as a financial facilitator of state actions have been highlighted in this chapter. Chapter 5 examines Congress’s role in facilitating state entrance into interstate compacts.

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CHAPTER FIVE

Facilitation of Interstate Compact Formation

C

ourt decisions and nine negotiated agreements to settle boundary disputes between British colonies submitted to the Crown for its approval were the progenitors of the interstate compact.1 Experience with intercolony agreements induced the Second Continental Congress in 1777 to authorize interstate compacts in the Articles of Confederation and Perpetual Union. Article VI stipulated: “No two or more states shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to entered into, and how long it shall continue.” The purpose of congressional consent was to prevent states from entering into a multilateral agreement directed against other states or the confederacy. The unicameral Congress gave its consent to three interstate boundary compacts.2 The first regulatory one—a 1785 compact between Maryland and Virginia—establishing fishing and navigation rules on the Chesapeake Bay and the Potomac River was not submitted to Congress for its consent. This compact continues in effect today in a modified form. In view of the experience with intercolony agreements under British rule and interstate agreements under the Articles, and boundary disputes raging in 1787, it is not surprising the drafters of the U.S. Constitution included a provision authorizing states to enter into a legally binding agreement or compact with sister states with the facilitating consent of Congress. The two terms apparently were used interchangeably. James Madison, who played a leading role in the 1787 constitutional convention, quoted in The Federalist No. 44 the last two clauses of Section 10 of Article I of the Constitution containing the compact clause, commented only on the prohibition of state import and export duties, and noted, “The remaining particulars of this clause fall within reasons which are either so obvious, or have been so fully developed, that they may be passed over without remark.”3 Section 10 of Article I of the Constitution also absolutely forbids a state to “enter into

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any treaty, alliance, or confederation.” States, however, may enter into an agreement or compact with a foreign power with the consent of Congress. The subject matter of compacts covers the alphabet from advisory to water and can involve almost any function including regulation of interstate commerce with the consent of Congress, as illustrated by the inactive Northeast Dairy Compact, entered into by the New England states, with congressional consent in 1996.4 Currently, an interstate agreement has been introduced in all state legislatures providing for the direct popular election of the President and the Vice President of the United States.5 The agreement becomes effective when state legislatures, including possibly the District of Columbia, with 270 electoral votes enact the compact and provides that each compacting state will appoint members of the Electoral College committed to cast their respective state votes for the presidential–vice presidential slate of candidates receiving the largest nationwide number of popular votes.6 The compact process is initiated in most instances by two or more states deciding there is a need to construct an interstate airport, bridge, or other facility, resolve a boundary dispute, or launch a cooperative regulatory or service program. Congress since 1910 has facilitated the formation of a number of interstate compacts by granting its consent-in-advance of the drafting of a compact (see below).

Uniform Regulatory Laws The establishment by the U.S. Constitution of a federal system, effective in 1789, with substantial powers reserved to the states, automatically made possible the enactment by state legislatures of disharmonious statutes in each area of regulation. The lack of uniform interstate regulatory statutes during the early decades of the new economic and political union did not cause serious problems because of the limited nature of interstate commerce. The sharp increase in such commerce in the latter part of the nineteenth century and early part of the twentieth century revealed serious economic problems that were caused in general by the lack of uniform state regulatory policies, and in particular by state statutes favoring domestic corporations. Congress, of course, can achieve uniformity in regulation by preempting completely a regulatory power of states as it did by enacting the Armored Car Industry Reciprocity Act of 1993 mandating that each state must accord interstate reciprocity by allowing a crew member employed by an armored car company with a license issued in a state “to lawfully carry any weapon to which such license relates in any State while such crew member is acting in the service of such company.”7 Five nonjudicial methods may be employed by states to achieve interstate regulatory uniformity on a regional or national basis. The first

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method involves the enactment of a reciprocity statute by state legislatures providing that foreign (chartered in another state) and alien (chartered in another nation) corporations will be treated in the same manner as domestic corporations. A state legislature, of course, is free at any time to repeal a reciprocity statute. The second method is enactment by state legislatures of a uniform state law drafted by the national conference of commissioners on uniform state laws, which was organized in 1892. All states have appointed uniform law commissioners, as have the District of Columbia, Puerto Rico, and the United States Virgin Islands. The commissioners draft laws covering numerous subjects and the consent of Congress is not required for their enactment and implementation by state legislatures. The latter have a mixed record of enactment of such laws. For example, the Uniform Commercial Code was drafted in 1951, but was not enacted by the fiftieth state, Louisiana, until 1991. The commissioners also drafted important nonregulatory uniform laws such as the Uniform Criminal Extradition Law, drafted in 1926 and revised in 1935, which facilitates the interstate return of fugitives from justices and persons arrested under the Uniform Law on Fresh Pursuit. The conference also drafts model acts to guide state legislatures on issues where uniformity is desirable but not essential. The Model State Administrative Procedure Act (1981) is an example of an act enacted in amended form by most state legislatures. Model acts also are drafted by other organizations, including associations of state officers such as the national association of insurance commissioners. The National Municipal League (now National Civic League), for example, drafted The Model State Campaign Finance Law in 1979.8 The third method is an interstate administrative agreement between the head of a state regulatory department or agency with his/her counterparts in sister states.9 These agreements, covering numerous topics, are either formal written ones or informal verbal ones. The principal advantage of this method is its flexibility, since agreements typically can be modified within a short period of time without enactment of amendments by the concerned state legislatures. An interstate administrative agreement may contain the same wording as an interstate compact. The Merrimack River Anadromous Fish Restoration Administrative Agreement has nearly identical wording as the Connecticut River Anadromous Fish Restoration Interstate Compact.10 The fourth method is the interstate compact, which was viewed at the time the U.S. Constitution was ratified as a mechanism allowing states the flexibility necessary to solve regional problems by conjoint activities, thereby obviating the need for congressional use of its delegated powers. States utilized compacts, with one exception, solely to solve boundary disputes until 1921 when the New Jersey state legislature and the New York state legislature each enacted the Port of New York Authority Compact (now Port

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Authority of New York and New Jersey Compact) establishing a commission charged with responsibility for developing the marine port. The fifth method is the federal-interstate compact, which dates to the Delaware River Basin Compact, effective in 1961, the first of six such compacts enacted by the concerned state legislatures and Congress. This compact and the Susquehanna River Basin Compact, effective in 1971, are regional water regulatory concordats.11 Two of the four federal-state compacts—Alabama-Coosa-Tallapoosa River Basin Compact and Apalachicola-Chattahoochee-Flint River Basin Compact—are modeled on the Delaware River Basin Compact and the Susquehanna River Basin Compact. The fifth compact, Appalachian Regional Compact, is an economic development one that has been enacted by the nine Appalachian state legislatures, and the sixth compact, the National Crime Prevention and Privacy Compact established an electronic information-sharing system facilitating the exchange of federal and state criminal records for noncriminal purposes such as background checks for government employment. Twenty-seven states enacted the compact as of 2008 and eight states and two territories signed memoranda of understanding indicating they subscribed to the compact. The latter two compacts were initiated by Congress and the other four such compacts were state-initiated.12

The Compact: A Cooperative Mechanism Each state is authorized by Section 10 of Article I of the U.S. Constitution to enter into an “agreement or compact with another state” with the consent of Congress, but the section contains no reference as to whether the United States may be a party to such a compact. The constitutional authorization section contains no restriction on the subject matter of compacts and they can be entered into for the purpose of regulating interstate commerce.13 Compacts involving interstate commerce, with one exception, require the consent of Congress to become effective. The exception is the Interstate Insurance Product Regulation Compact, because Congress in the McCarran-Ferguson Act of 1945 exempted states from the antitrust laws and devolved upon the states authority to regulate the insurance industry.14 Section 10 of Article I also does not specify the process by which states may enter into compacts or make a distinction between an agreement and a compact. Chief Justice Roger B. Taney of the U.S. Supreme Court in 1840 delivered an opinion focusing upon the meaning of the terms agreement, compact, and treaty in Section 10 of Article I of the U.S. Constitution. He concluded that the framers of the Constitution did not use superfluous words and hence “the words ‘agreement’ and ‘compact’ cannot be construed as synonymous with one another, and still less can either of

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them be held to mean the same thing with the word ‘treaty’ in the preceding clause.”15 He also noted the term agreement could refer to a verbal or a written understanding.16 The Court in 1893 commented on the two terms as follows: “Compacts or agreements—and we do not perceive any difference in the meaning, except that the word ‘compact’ is generally used with reference to more formal and serious engagements than is usually implied in the term ‘agreement’—cover all stipulations affecting the conduct or claims of the parties.”17 It has become established that agreements entered into by administrators of sister states do not require the consent of Congress to be effective. In 1959, the U.S. Supreme Court opined that “[a] compact is, after all, a contract” and hence is protected by the Constitution’s contract clause (Art. I, §10) forbidding a state legislature to enact a “law impairing the obligation of contracts.”18 This ruling affirmed the long-standing understanding that a compact is a contract protected by the contract clause of the U.S. Constitution. It is important to note there is no specific constitutional prohibition of congressional impairment of contracts, including interstate compacts. An important principle in state law is that one state legislature may not bind a future state legislature. Entrance into an interstate compact is the one exception to this principle in view of the fact a compact is a contract. A compact is similar to a treaty in that provisions of the former supersede conflicting state laws. In other words, a state surrenders part of its sovereign authority by entering into a compact, except an advisory one, with a sister state(s). Interstate compacts permit states to exercise their reserved powers, with congressional consent if the subject matter is political in nature (see below), to solve regional and national problems without the need for direct congressional action. Enactment of an identical compact, except an advisory one, by the fifty state legislatures establishes a uniform policy throughout the nation. Experience reveals a compact is a versatile mechanism employable to establish state boundary lines with the consent of Congress, harmonize provision of state services and regulatory policies on a multistate basis, construct facilities, and establish new regional governmental entities, including an interstate city. No such city has been created to date, but the compact device has been employed to create two interstate school districts, each involving New Hampshire and Vermont towns. Local governments often enter into formal and informal mutual assistance agreements and occasionally the concerned local governments, acting through their respective state governments, will seek congressional consent for a local government mutual assistance compact. Congress in 1966, for example, gave its consent to a mutual aid compact entered into by the City of Bristol, Virginia, and the City of Bristol, Tennessee.19

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The precise number of compacts in effect is difficult to determine. Congressional willingness to grant consent-in-advance to compacts has become more common in recent decades and a number of proposed concordats have not been enacted into law by at least two concerned state legislatures. A perusal of a state’s consolidated laws reveals the number and types of interstate compacts the state legislature has enacted, but does not ensure all are active. A 1998 Council of State Governments directory lists twenty-five boundary compacts, 192 other active interstate compacts, and fifty-one dormant or defunct ones.20 The Maine-New Hampshire Interstate School District Compact is listed as active, but has not been implemented. Although the New England Truckers Compact is listed as active, the directory notes the compact has been superseded by the New England Truck Permit Agreement for Oversize, Non-Divisible, Interstate Loads. Ann O’M Bowman reported in 2001 that thierty-eight of the 192 compacts, excluding boundary ones, listed in the directory had been enacted by only one state legislature and hence were not in effect.21 The directory does not include all boundary compacts granted congressional consent. Only three pre-1943 such compacts are listed, but Felix Frankfurter and James M. Landis identified a total of thirty-nine compacts consented to by Congress under the U. S. Constitution in the period ending in 1925.22 Only six of these compacts did not establish state boundaries. They reported the concerned state legislatures failed to implement the 1910 Missouri-Kansas Boundary Compact and the Oregon-Washington Boundary Compact. Frankfurter and Landis also noted no action was taken by concerned state legislatures relative to implementation of the Arkansas, Louisiana, and Texas Compact of 1861 providing for removal of rafts from the Red River, the four-state Lake Michigan Compact of 1910 relating to criminal jurisdiction on the waters of the lake, and the Forestry and Water Conservation Compact of 1911 (Weeks Act). The directory does not include the 1989 South-Dakota-Nebraska Boundary Compact and possibly other boundary compacts.23 At least four compacts have been entered into subsequent to publication of the directory in 1998—the Adult Offender Supervision Compact, Interstate Forest Fire Protection Compact, and three boundary compacts.24 Bowman determined in 2001 that the typical state belongs to 23.4 compacts and the range in the number of compacts varied from 14.0 in South Dakota and Wisconsin to 32.0 in Colorado, New Hampshire, and Vermont.25 Compacts entered into by New Hampshire, for example, involve most of the alphabet and include, among others, adoption assistance for hard to place children, buses, civil defense, detainers, education, interpleader, libraries, lotteries, low-level radioactive waste, medical needs, mental health, motor vehicles, pest control, public water supply, sewage, solid waste, state

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police, taxation, truckers, and water pollution control compacts. Most compacts entered into by New Hampshire are regional ones such as the Atlantic States Marine Fisheries, Connecticut River Flood Control, Corrections, Northeast Dairy, Forest Fire Protection, Higher Education, Low-Level Radioactive Waste, Oceanography, Regional Planning, Solid Waste, and Truckers compacts. The U.S. Government Accountability Office in 2007 released a report on the structure and governance of forty-six-of the fifty-nine environment and natural resource compacts granted congressional consent.26 Implementation of each of thirty-three of these compacts is by a commission and each of the other compacts is administered by the concerned department in each member state. The compact-created commissions reported that only rarely are questions raised about their structure or governance. A compact may involve parts or all of two states or as many as fifty states, the Commonwealth of Puerto Rico, the District of Columbia, U.S. territories, and ten Canadian provinces. All state legislatures have enacted the Interstate Compact on Juveniles and the Interstate Compact for Education has been enacted by the legislatures of forty-eight states, District of Columbia, American Somoa, Puerto Rico, and the Virgin Islands. Forty-seven state legislatures and Congress on behalf of the District of Columbia enacted the Interstate Compact for Supervision of Parolees and Probationers. The subject matter of compacts is extremely diverse today, but the fifteen compacts enacted by states and consented to by Congress under the U.S. Constitution prior to 1900 dealt only with the establishment of state boundary lines, with the exception of the 1825 one incorporating the Chesapeake and Ohio Canal Company.27 Boundary compacts continue to be utilized to avoid the need for litigation in the U.S. Supreme Court. For example, Congress in 2000 granted its consent to a compact, entered into by Okalahoma and Texas, establishing a new boundary along the vegetation line on the south bank of the Red River except in the Texoma area.28 Boundary compacts obviously do not require continuous administrative action. Other compacts establish a public authority, headed by a board or commission, to execute compact provisions or are administered by regular departments and agencies of the involved states. Compact Negotiations and Ratification The manner of compact negotiations is not stipulated in the U.S. Constitution, and Congress has not enacted a statute specifying procedures to be followed by quasi-sovereign states in entering into compacts. Negotiating a compact is somewhat similar to the process employed by a nation-state desiring to enter into a treaty with another nation-state(s). There are, however, three differences between a treaty and a compact. First, the president is granted

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sole authority to negotiate a treaty with another nation. In contrast, the governor of a state plays no direct role in the process of negotiating a compact other than appointing commissioners to draft a compact on a specified subject in conjunction with commissioners of other states. Second, Congress may enact a statute conflicting with a treaty whereas a state legislature lacks the authority to enact a statute conflicting with provisions of an interstate compact. Third, a compact is a contract enforceable by courts whereas the procedure for enforcement of a treaty is specified therein. A compact becomes effective only if (1) negotiators reach an agreement on the precise wording of a tentative compact, (2) two or more of the concerned state legislatures enact the compact, and (3) Congress grants its consent for implementation if the compact is political in nature, as explained below. These steps have not proven to be empty formalisms. On the contrary, for even the relatively simple compacts established or proposed in the past, each step has proven to be a significant, sometimes insurmountable obstacle. Negotiating a Compact Gubernatorially appointed joint commissions negotiated all interstate compacts until 1930. Negotiation of river basin compacts, such as the Republican River Compact, included a representative of the United States appointed by the president. Frederick L. Zimmermann and Mitchell Wendell in 1976 explained the advantages of the joint commission method, particularly “where there is a presumption of permanence approaching perpetuity.”29 They cited as advantages the prestige of the commission, staff assistance, and “continuity of effort and negotiating personnel which may be desirable over a protracted period of negotiation.”30 The joint commission method continues to be used, but has been supplemented by other methods. The Interstate Compact on Parolees and Probationers was drafted by the Interstate Commission on Crime, composed of attorneys general and other state officers. Similarly, the Southern Regional Education Compact was the product of the work of Southern governors. Ten interstate low-level radioactive waste compacts were promoted by the National Conference of State Legislatures in response to congressional enactment of the Low-Level Radioactive Waste Policy Act of 1980 mandating states to assume responsibility for such waste disposal.31 More recently, the national association of insurance commissioners drafted in 2004 the Interstate Insurance Product Regulation Compact, which has been enacted by thirty-four state legislatures and the Puerto Rican legislature by June 1, 2009. And one state legislature may enact a statute that could serve as

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a prospective interstate compact and invite other state legislatures to join by enacting identical statutes. Gubernatorially appointed commissioners often debate provisions of draft compacts and seek to promote agreement on provisions perceived to be acceptable to their respective state legislatures. If a regional problem is susceptible to a relatively simple solution, negotiators may experience little difficulty in drafting a compact that will be enacted by concerned state legislatures. A regional higher education compact, for example, is a commonsense approach to ensuring expensive postgraduate professional educational programs will be available to residents of compacting states. Numerous proposed compacts, however, relate to extremely divisive problems, such as apportionment of waters of a major river basin, and usually involve extended negotiations. Major administrative, financial, substantive, and technical issues may be raised during negotiations on an important proposed compact and unanimity must be reached on resolving each issue, often an extremely difficult task, before the compact can be submitted to the concerned state legislatures. The degree of difficulty in reaching unanimity among negotiators on a proposed compact often is related directly to the number of involved states, with a small number of states often able to reach an agreement in a shorter period of time than a large number of states. A bilateral interstate compact, however, may prove to be exceptionally difficult to negotiate, as illustrated by the twelve years of negotiations required to gain enactment by the two concerned state legislatures of the California-Nevada Water Apportionment Interstate Compact. Negotiations in other instances have been broken off prior to the reaching of an agreement on a compact. The proposed Potomac River Compact—Maryland, Virginia, and the District of Columbia—was abandoned in 1976 after negotiators spent ten years attempting to reach agreements on its various provisions. Two proposed Delaware River Basin Compacts failed to gain approval in the 1920s, and a third one was bottled up in the 1950s in a Pennsylvania senate committee after approval by the house of representatives and enactment by the other concerned state legislatures. If a proposed compact would create only a study commission charged with developing recommendations to solve a specific problem or an operating commission financed entirely by user fees, the financial commitment of each compacting state would be very limited. In contrast, a proposed compact provision relating to a long-term commitment of funds by member states will tend to make negotiators cautious. In other instances, negotiators may be informed by leaders of their respective state legislature that the compact will not be enacted into law unless the compact contains provisions for gubernatorial or legislative oversight. Article X of the Port Authority of

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New York Compact of 1921, for example, directs the authority to submit a comprehensive plan for its activities to the two state legislatures for approval prior to its implementation. Article XVI of this compact authorizes the governor of each state to veto any action taken by the commissioners of the port authority. In 1975, Governor Brendan Byrne of New Jersey vetoed a number of actions taken by port authority commissioners to pressure them to develop a public transit aid plan acceptable to him and to roll back the May 1975 increase in bridge and tunnel tolls from $1.50 to $1.00. More recently, the threat by one or both governors to veto a decision of the commissioners has been sufficient to convince them to rescind a decision, such as one increasing tolls on the George Washington Bridge and Hudson River tunnels.32 Fears that such political checks on the activities of the compact agency could be used to impair its functioning or injure other member states provide additional impetus for complex and prolonged negotiations. Furthermore, negotiators may be charged with special instructions to safeguard their states’ political interests. Representatives of federal departments and agencies may participate in compact negotiations at the invitation of states, but such participation has been limited to date. In contrast, Congress, in authorizing specified states to negotiate a water allocation compact, subject to subsequent consideration by Congress, has required participation by federal officers. Since the Potomac River Compact involves the District of Columbia, federal representatives participated in the negotiation of the compact, and the United States and the District are represented on the compact’s commission. Zimmermann and Wendell in 1976 explained that federal participation provides states “with a friend at court at a high level who understands their situation and can present their case.”33 The former executive director of the Northeast Dairy Compact commission is convinced proponents of the compact should have invited representatives of concerned federal departments and agencies to participate in the negotiations leading to the drafting of the compact.34 Congress refused to extend its consent for the compact in 2001 and it became inactive. Many issues debated by compact negotiators are re-debated when the proposed compact is submitted to each concerned state legislature. If the negotiators fail to keep in close contact with legislative leaders and/or the governors, they may discover their efforts came to naught with the rejection of the proposed compact by the state legislature or a gubernatorial veto. In other instances, the negotiators may be directed to renegotiate contentious issues. Because of the urgent need for action demonstrated by the inadequacy of the port of New York during World War I, the New Jersey and New York state legislatures in 1921 enacted identical statutes stipulating the proposed Port of New York Authority Compact would become effective “when signed and sealed by the Commissioners of each State as

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hereinbefore provided and the Attorney General of the State of New York and the Attorney General of New Jersey.”35 Article VIII(C) of the Compact for Education stipulates it may be adopted “either by enactment thereof or by adherence thereto by the Governor; provided that in the absence of enactment, adherence by the Governor shall be sufficient to make his state a party only until December 31, 1967.” In addition, the Kansas governor authorized state participation in the Interstate Compact for Supervision of Parolees and Probationers for a period of time in the absence of enactment of the compact by the state legislature.36 Political concerns can delay and complicate establishment of a compact in other ways. Obtaining approval by the concerned state legislatures can be a lengthy process in part because of the need for both houses of each concerned state legislature, except in Nebraska, to approve a bill identical to statutes enacted by other party state legislatures. History is replete with examples of long delays prior to the enactment of an interstate compact by concerned state legislatures. Five years were required to secure the necessary enactments for the Atlantic States Marine Fisheries Compact to become effective. The Great Lakes Basin Compact was enacted in 1955 by the state legislatures in Illinois, Indiana, Michigan, Minnesota, and Wisconsin and in 1956 by the Pennsylvania general assembly, but the New York state legislature and the Ohio general assembly did not enact the compact until 1960 and 1963, respectively. A compact enacted by two or more state legislatures, of course, is subject to a gubernatorial veto. The Vermont general assembly enacted the New England Water Pollution Compact, but the governor vetoed it on the ground the compact did not contain a provision for the abatement of existing pollution. It also should be noted a compact may be self-executing after signing of the enabling bill by each of the party state governors or may require execution by the governors. The Interstate Compact for the Supervision of Parolees and Probationers was enacted by the 1936 New York state legislature as a non-self-executing compact, but was not executed for eight years because Governor Herbert H. Lehman refused to execute it. A delay in the execution of a compact also may be occur if one or more of the concerned states make participation contingent upon specified states enacting the compact, as illustrated by the Ohio River Valley Sanitation Compact. The state legislatures or the compact can make its execution conditional upon Congress initiating specific actions. The Colorado, Kansas, and Nebraska state legislatures enacted the Republican River Compact, which includes conditions in Article XI: (a) Any beneficial consumptive uses by the United States, or those acting by or under its authority within a state, of the waters allocated by this compact, shall be made within

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the allocations hereinabove made for use in that State and shall be taken into account in determining the extent of use within that State. (b) The United States . . . in the exercise of rights or powers arising from whatever jurisdiction the United States has in, over, and to the waters of the Basin shall recognize, to the extent consistent with the best utilization of the waters for multiple purposes, that beneficial consumptive use of the waters within the Basin is of paramount importance to the development of the Basin; and no exercise of such power or right thereby that would interfere with the full beneficial consumptive use of the waters within the Basin shall be made except upon a determination, giving due consideration to the objectives of this compact and after consultation with all interested federal agencies and the state officials charged with the administration of this compact, that such exercise is in the interest of the best utilization of such waters for multiple purposes. (c) The United States . . . will recognize any established use, for domestic and irrigation purposes, of the waters allocated by this compact which may be impaired by the exercise of federal jurisdiction in, over, and to such waters; provided, that such use is being exercised beneficially, is valid under the laws of the appropriate State and in conformity with this compact at the time of the impairment thereof, and was validly initiated under state law prior to the initiation or authorization of the federal program or project which causes such impairment. Congress in 1943 accepted and incorporated the conditions in granting consent to the compact.37 South Dakota and Wyoming similarly negotiated the Belle Fourche River Compact, stipulating that its execution was dependent upon Congress including three conditions in its consent.38 Zimmermann and Wendell concluded in 1976 “there are weaknesses and difficulties in the use of the interstate compact. The most obvious difficulty is the necessity for securing agreement among several jurisdictions.”39 Congressional Consent As noted, many compacts do not need the consent of Congress, as illustrated by the 1968 state university tuition reciprocity compact between Minnesota

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and Wisconsin allowing students of each state to attend a state university in the other state and pay in-state tuition. Congress can be slow in granting its consent. The state legislatures in Maryland and New York in 1967 and in Pennsylvania in 1968 each enacted the federal-state Susquehanna River Basin Compact, yet Congress did not enact the compact until 1970. Similarly, the Washington Metropolitan Area Transit Regulation Compact was enacted by Maryland, Virginia, and the District of Columbia in 1958, but did not receive the consent of Congress until 1960. The required consent is designed to safeguard the interests of the national government. Chief Justice John Marshall of the U.S. Supreme Court in 1833 explained: “If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution.”40 Hence, it is not surprising the opponents of a compact utilize the compact clause, in a manner similar to the dormant commerce clause, to challenge the constitutionality of a compact that has not received congressional consent. The nature of and procedure for granting congressional consent to compacts entered into by two or more states are not specified in the U.S. Constitution, which places no limitation on the duration of consent. In Green v. Biddle, the U. S. Supreme Court in 1823 noted this fact in a case involving a congressional statute referring to the Virginia-Kentucky Interstate Compact of 1789 and granting consent to the admission of Kentucky to the Union.41 The compact was challenged by Kentucky on the ground of lack of congressional consent. The New Hampshire supreme court in 1845 rejected the argument that an 1819 New Hampshire statute and an 1821 Maine statute authorizing construction of a bridge over navigable waters (Piscataqua River) without congressional consent violated Article I, §10 of the U.S. Constitution.42 The court specifically opined there is no constitutional provision precluding each of these states from granting authority for the erection of a bridge to the middle of the river. On the other hand, the U.S. Supreme Court in Florida v. Georgia in 1854 held a boundary compact enacted by the two states would be invalid unless Congress granted its consent.43 In 1893, the Court in Virginia v. Tennessee ruled congressional consent is required only for a compact tending to increase “the political power of influence” of the party states and to encroach “upon the full and free exercise of federal authority.”44 The two states reached a boundary agreement early in the nineteenth century, but had not obtained congressional consent. Congressional reliance upon terms of the compact for judicial and revenue purposes, in the judgment of the Court, implied the grant of consent. In

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other words, Congress can grant consent to a compact by implication as well as expressed consent. The Court provided the following example to illustrate the distinction between a political and a nonpolitical compact: “If . . . Virginia should come into possession and ownership of a small parcel of land in New York which the latter State might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter State to obtain the consent of Congress before it would make a valid agreement with Virginia for the purchase of the land.”45 Building upon this decision, the Court in the same year held the Potomac River Compact of 1785 between Maryland and Virginia was constitutional even though the Congress, created by the Articles of Confederation and Perpetual Union, had not granted its consent to the compact.46 Writing for the Court, Justice Stephen J. Field explained that the two states at the time were “sovereign states . . . and could exercise any control and dominion over their navigable waters, and make any regulations necessary for the protection of their navigation, or to promote the commerce upon them of their respective states.”47 The United States Steel Corporation challenged the constitutionality of the Multistate Tax Compact, alleging it had not been granted consent by Congress. In 1978, the U.S. Supreme Court upheld the constitutionality of the compact by declaring it did not “authorize the member states to exercise any powers they could not exercise in its absence.”48 Congress in 1949 granted its consent to the Northeastern Interstate Forest Fire Compact, the first compact to authorize a contiguous Canadian province to become a member of the compact with the consent of Congress.49 Compact Formation Facilitation Consent to a compact has been granted by Congress prior to (permissive) and subsequent to (ratifying) the enactment of a compact by the concerned state legislatures. Furthermore, Congress is free to grant its consent in advance for each compact entered into by states or blanket approval in advance for all compacts relating to a specific subject. Congress in the Crime Control Act of 1910 granted consent-in-advance to Illinois, Indiana, Michigan, and Wisconsin to enter into a compact and to exercise jurisdiction “over offenses arising out of the violation of the laws” of the states on waters of Lake Michigan.”50 The following year, the Weeks Act granted unrestrictive consent-in-advance to compacts formed “for the purpose of conserving forests and water supply.”51 In 1921, Congress granted its consent-in-advance for a Minnesota-South Dakota Compact, including a provision relating to criminal jurisdiction over boundary waters.52 Similarly, Congress in the Crime Control Consent Act of 1934 and the Tobacco Control

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Act of 1936, respectively, authorized states to enter into interstate crime control concordats and tobacco-producing states to establish interstate compacts “to enable growers to receive a fair price for such tobacco.”53 The Civil Defense and Disaster Compact Act of 1951 granted congressional consent-in-advance to all states to enter into such compacts with the unique provision that each compact must be filed with the U.S. House of Representatives and the Senate, which, by a concurrent resolution, may disapprove a compact within sixty days of its enactment.54 On July 20, 1961, President John F. Kennedy signed Executive Order 10932 encouraging states to enter into such compacts. The Crime Control Act of 1951 grants consent-in-advance to Iowa, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin to enter into a compact relating to criminal jurisdiction over boundary waters.55 Consent-in-advance is granted to states by The Airport Development Act of 1959 to form interstate compacts to develop and operate airports.56 And The Low-Level Radioactive Waste Policy Act of 1980 grants consent-in-advance to states to enter into compacts that must be submitted to Congress for approval. Ten compacts involving forty-four states have been formed.57 Relative to the latter type of compact, Congress in 1996 stipulated that “no State or interstate compact shall be liable for the treatment, storage or disposal of any low-level radioactive waste (including mixed waste) attributable to the operation, decontamination, and decommissioning of any uranium enrichment facility.”58 Congress also has granted its consent to a compact enacted by two or more state legislatures and added a consent-in-advance provision for other state legislatures to join the compact by enacting it.59 Although most compacts are submitted to Congress for approval, a small number of compacts have been executed without such approval. The Palisades Interstate Park Agreement of 1900, between New Jersey and New York, is an example of an interstate compact not submitted to Congress for consent. The Southern Regional Education Compact, in contrast, received the consent of the U.S. House of Representatives, but did not receive the consent of the Senate, apparently because of the belief consent was not required for what clearly is a nonpolitical compact.60 Congress in 1996 granted consent to the Emergency Management Assistance Compact and specifically authorized member states to enter into supplementary agreements with other states: “Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this compact contains elements of a broad base common to all states, and nothing herein shall preclude any state entering into a supplementary agreement with another state or affecting any other agreements already in force between states.”61

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Occasionally, Congress included permission and ratification in the same statute. In 1921, Congress ratified a Minnesota-South Dakota Boundary Compact relating to criminal jurisdiction over boundary waters and simultaneously granted consent-in-advance for a similar compact between Iowa, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin.62 Several nonpolitical compacts have been submitted to Congress since the 1921 Port of New York Authority Compact was so submitted because bond counsels suggested congressional consent would make the authority’s bonds more appealing to conservative investors who otherwise might be hesitant to purchase bonds issued by a new and unusual governmental organization—an interstate public authority. Congress granted its consent and the authority today has a stellar credit rating. The grant of consent to a compact generally does not contain a time limit. The Interstate Oil and Gas Compact of 1935 and the Atlantic States Marine Fisheries Compact were subject to sunset provisions, but Congress subsequently removed them.63 Compacts formed under the Low-Level Radioactive Waste Policy Act of 1980 are subject to a five-year approval provision.64 As noted, the Northeast Dairy Compact became inactive in 2001 when Congress failed to extend its consent. Consent Conditions Congress may impose conditions in granting its consent, as Chief Justice Charles Evans Hughes of the U.S. Supreme Court wrote in 1937.65 The national legislature typically reserves the right to “alter, amend, or repeal” its consent to a compact and always reserves its authority over navigable waters. The consent resolution also may limit a compact commission to enumerated functions and specifically require congressional consent to undertake a new function.66 The Boulder Canyon Project Act of 1928 granted congressional consent to the Colorado River Compact subject to stipulated conditions, including approval of the modified compact by California and five of the other six involved states.67 Consent was granted to the Wabash Valley Compact in 1959 and the Washington Metropolitan Area Transit Regulation Compact in 1960 with the proviso that each compact authority must publish specified data and information.68 The most recent court suit involving conditions attached to a compact was Tobin v. United States in which the U.S. Court of Appeals for the District of Columbia Circuit in 1962 upheld the authority of Congress to attach conditions and the U.S. Supreme Court refused to review the lower court’s decision.69 Is there a need for Congress to consider all interstate compacts? In 1976, Zimmermann and Wendell answered this question in the negative: “Consent

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bills for interstate compacts dealing with issues in the realm of state activity, law, and administration, with interstate jurisdictional problems and with the settlement of interstate equities, normally serve only to clutter congressional calendars and complicate and obstruct interstate cooperation.”70 A congressional consent resolution is subject to a veto by the president. The failure of Congress to grant consent to compacts enacted by state legislatures and signed by their governors in a few instances—particularly the proposed Connecticut River Flood Control Compact and Merrimack River Flood Control Compact in the 1930s—has been attributed to the threat of a presidential veto. In 1939, President Franklin D. Roosevelt disallowed a bill granting consent-in-advance to states to enter into compacts relating to Atlantic Ocean fishing on the ground the subjects of the compact were “described only in broad outline.”71 Two years later, President Roosevelt disallowed the Republican River Compact, but approved in 1943 a modified compact.72 Effects of Congressional Consent Does the grant of congressional consent to an interstate compact convert it into federal law? The U.S. Supreme Court has changed its answer to this question. In 1938, the Court opined in Hinderlider v. La Plata River and Cherry Creek Ditch Company that such consent does not make a compact the equivalent to a U.S. treaty or statute.73 The Court in 1940, however, in Delaware River Joint Toll Bridge Commission v. Colburn modified its earlier ruling by holding a compact approved by Congress that involves “a federal ‘title, right, privilege, or immunity’ which when explicitly identified and claimed in a state court may be reviewed here on certiorari.”74 In 1981, the Court in Cuyler v. Adams issued a momentous decision opining congressional consent makes a compact federal law in addition to state law.75 U.S. courts since 1874 had been required to apply the interpretation of a concerned state law by the highest court in the state.76 The reversal of precedent allowed the Court to interpret the concerned Pennsylvania statute and disregard its interpretation by the Pennsylvania supreme court. Is a public authority created by an interstate compact that received the consent of Congress cloaked with immunity from suit in a U.S. court granted states by the Eleventh Amendment to the U.S. Constitution? The U.S. Supreme Court, by a five to four vote, ruled in the negative by explaining the Port Authority Trans-Hudson Corporation is a self-financing entity and subjecting it to suit in the U.S. district court does not place a burden upon the treasury of either New Jersey or New York.77 Five state legislatures, including the Nebraska state legislature, enacted the Central Low-Level Radioactive Waste Compact, and it received the consent

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of Congress. The compact commission selected Nebraska as the site for a waste disposal facility and Governor Kay Orr announced the state was not pleased with the decision, but would honor its commitment under the compact. Subsequently, two Nebraska state departments required the contractor to provide answers to seven hundred questions and the Department of Environmental Quality in January 1993 issued a notice of intent to deny the necessary license on the grounds of drainage problems and that the site was a wetland. Litigation followed and Nebraska in 1998 denied the contractor’s amended license application. Waste generators and the contractor filed a suit in the U.S. District Court for the District of Nebraska, alleging the state deliberately delayed review of the license application for eight years and always intended to deny it. The court in 1999 opined that Nebraska waived its Eleventh Amendment immunity when it joined the compact.78 In 2001, the U.S. Court of Appeals for the Eighth Circuit affirmed the lower court’s decision.79 Does the grant of congressional consent to an interstate compact invalidate other federal statutes containing inconsistent provisions? Courts could interpret such consent as repealing, relative to the interstate compact, conflicting federal statutes. What effect does a new federal statute with conflicting provisions have on an interstate compact previously approved by Congress? It is apparent the consent would be repealed relative to the conflicting provisions with the exception of any vested rights protected by the Fifth Amendment to the U.S. Constitution. The grant of consent suggests Congress may enforce compact provisions, but enforcement in practice usually is left to courts. An individual or a state may challenge the validity of a compact in a state or a U.S. court. Similarly, an individual or a state may bring suit to have a compact’s provisions enforced. The Eleventh Amendment forbids a U.S. court to consider a suit in-law or equity against a state brought by a citizen of a sister state or a foreign nation. Nevertheless, a citizen can challenge a compact or its execution in a state or federal court against an individual or in a proceeding to prevent a public officer from enforcing a compact.80 If brought in a state court, the suit could be removed to the U.S. district court under provisions of the Removal of Causes Act of 1920 on the ground the state court “might conceivably be interested in the outcome of the case.”81 States that are parties to an interstate compact occasionally file a suit in the U.S. Supreme Court requesting its interpretation one or more compact provisions. Kansas, for example, filed a suit against Colorado in an attempt to resolve disputes pertaining to the Arkansas River Compact. In 1995, the Court ruled unanimously that (1) Kansas failed to supply evidence Colorado had not adhered to reservoir operating principles allegedly resulting in the material depletion of river flow, (2) Colorado’s winter water storage program

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did not deplete materially usable state line river flows in violation of the compact, (3) the compact’s article permitting beneficial development included replacement of centrifugal with turbine pumps and increased pumping wells existing prior to the compact, and (4) the court-appointed special master placed reasonable reliance upon reports issued by the U.S. Geological Survey and the Colorado state legislature in reaching his conclusion relative to the largest amount of precompact pumping in Colorado.82 Kansas continued its disagreement with Colorado relative to the Arkansas River Compact by filing another suit against Colorado. In 2001, the U.S. Supreme Court rejected Colorado’s contention that a special master’s recommendation of a damages award for Colorado’s violation of the compact was barred by the Eleventh Amendment to the U.S. Constitution on the ground the damages were losses suffered by individual Kansas farmers.83 Compact Amendment and Termination Experience occasionally reveals the need for a compact amendment(s) if current or new goals are to be achieved. Proposed compact amendments often must pass through what can be termed the hazardous process of obtaining their enactment by each concerned state legislature, approval of each governor, and consent of Congress and approval of the president if the original compact received such consent and approval. Congressional consent can be delayed or denied if a member of Congress from the area of the compact objects, as illustrated by the experience of the New Jersey state legislature and the New York state legislature, which each enacted an amendment to the Port Authority of New York and New Jersey Compact, signed by the two governors, allowing the authority to initiate industrial development projects. U.S. Representative Elizabeth Holtzman of New York in 1967 objected to the amendment on the ground the authority had not solved the transportation problems of the Port of New York and argued that the authority should devote resources to construction of a railroad freight tunnel under the Hudson River. She subsequently withdrew her objection when the authority agreed to finance a study of the economic feasibility of constructing such a tunnel. The study concluded it would not be economically viable. Section 10 of Article I of the U.S. Constitution delegates authority to Congress to revise state statutes levying import and export duties, but fails to contain similar authority relative to interstate compacts. Nevertheless, Congress withdrew its consent to the Kentucky-Pennsylvania Interstate Compact which stipulated the Ohio River would be kept free of obstructions. The U.S. Supreme Court in Pennsylvania v. Wheeling and Belmont Bridge Company in 1855 opined that the statute was constitutional under the supremacy of the

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laws clause of Article VI and a compact granted consent by Congress does not restrict its power to regulate the compact.84 The Court in 1917 issued a similar opinion in Louisville Bridge Company v. United States by holding Congress may amend a compact in the absence of a compact provision specifically reserving to Congress authority to alter, amend, or repeal the compact.85 It is apparent that a congressional statute terminating a compact is not subject to the U.S. Constitution’s Fifth Amendment’s due process of law guarantee, since it extends protection only to persons. Interstate boundary compacts, however, cannot be terminated. Other compacts typically contain a provision relating to termination. Article X of the Colorado River Compact, for example, authorizes termination only by agreement of all member states. A number of compacts stipulate a state desiring to terminate the compact must provide advanced notice, typically sixty days, of its withdrawal decision. Article VIII of the Interstate Mining Compact, however, does not permit a state to withdraw until one year after the governor has notified the governors of the other compacting states of the proposed withdrawal. The Delaware River Basin Compact contains a provision stipulating: “The duration of this compact shall be for an initial period of 100 years from its effective date, and it shall be continued for additional periods of 100 years if not later than 20 years nor sooner than 25 years prior to the termination of the initial period or any succeeding period none of the signatory state, by authority of an act of its legislature, notified the commission of intention to terminate the compact at the end of the then current 100 year period.”86 The Susquehanna River Basin Compact contains a similar hundred-year provision. The Florida state legislature on several occasions withdrew from and subsequently rejoined the Atlantic States Marine Fisheries Compact, and the 1995 Virginia general assembly enacted a statute withdrawing from the compact on the ground that fishing quotas for Virginia were too low.87 And the Maryland general assembly withdrew from the Interstate Bus Motor Fuel Tax Compact in 1967 and the National Guard Mutual Assistance Compact in 1981.88 International law makes no provision for citizens of a nation signatory to a treaty to be involved in its termination. In 1838, the U.S. Supreme Court applied this principle in Georgetown v. Alexandria Canal Company by opining citizens whose rights would be affected adversely by a compact are not parties to a compact and hence are not involved directly in terminating a compact.89

Types of Compacts Interstate compacts may be bilateral, multilateral, sectional, national, and international in terms of membership. Twenty-six types of compacts,

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administered by a commission or by departments and agencies of member states, have been enacted: advisory, agricultural, boundary, civil defense, crime control and corrections, cultural, education, emergency management assistance, energy, facilities, fisheries, flood control, health, low-level radioactive wastes, marketing and development, metropolitan problems, military, motor vehicle, natural resources, parks and recreation, regulatory, river basin, service, taxation, and federal-interstate. Twenty-five of the thirty-two compacts entered into by sister states with congressional consent between 1789 and 1920 settled boundary disputes.90 States entered into approximately 125 interstate compacts between 1920 and 1969. Patricia S. Florestano identified nineteen new compacts during the 1970s and twenty-two new compacts in the period 1980 to 1992.91 She also reported (1) a major decline in the number of boundary compacts, (2) an increase in the number of regional compacts, (3) a sharp increase in the number of environmental, river basin, and transportation compacts, and (4) most post-1970 compacts established commissions or authorities.92 A few compacts seek to promote interlocal governmental cooperation in a two-state area as illustrated by the two New Hampshire-Vermont Interstate School District compacts. The decline in the number of new regulatory interstate compacts since 1965 is attributable to Congress exercising more frequently its powers of preemption to remove regulatory authority completely or partially from states.93 Governor Nelson A. Rockefeller of New York in the mid-1960s promoted the Mid-Atlantic States Air Pollution Control Compact, which was enacted by the state legislatures in Connecticut, New Jersey, and New York. The compact, however, did not receive the consent of Congress because it followed President Lyndon B. Johnson’s advice to enact the Air Quality Act of 1967 preempting state responsibility for air pollution abatement.94 Economic interest groups seeking to encourage Congress not to exercise its preemption powers are responsible for the establishment of regulatory compacts. These groups argue a compact obviates the need for national government regulation since formal interstate action has solved the problem of nonharmonious regulation.95

Regulatory Compact Experience The number of regulatory interstate compacts is small and decreased in 2001 when a bill extending congressional consent for the Northeast Dairy Compact was not acted upon. Although the Delaware River Basin Commission and the Susquehanna River Basin Commission possess regulatory authority and are considered to be successful in achieving their respect goals, the two compacts creating these commissions are federal-state compacts and not

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pure interstate compacts. Regulatory compacts may be administered by a commission or by departments and agencies of party states. Compact Commissions The Potomac River Fisheries Compact is a regulatory one, traceable in origin to a 1785 compact between Maryland and Virginia, which created a commission empowered by Section 2 of Article III to regulate “all species of finfish, crabs, oysters, clams, and other shellfish,” issue licenses, and impose fees. This compact is a successful one. The regulatory interstate compact that achieved its goals within a very short period of time is the unusual 1953 bi-state compact that received congressional consent in the same year and established the two-member waterfront commission of New York harbor.96 It is the only commission granted the power of taxation and its budget requests submitted to each governor become effective unless either the New York or the New Jersey governor within a thirty day period vetoes or reduces an item(s). The waterfront had been plagued by crime and corruption. Almost immediately, the commission eliminated two corrupt practices. The shape-up was a method employed to hire dock workers which often resulted in borrowing from designated loan sharks as the price paid by a longshoreman to a hiring boss to obtain work, favors, and kickbacks. The commission replaced this method by registering and licensing dockworkers, and operating employment information centers. The second eliminated corrupt practice was public loading, under which truckers were required to pay designated individuals to load or unload cargo even if their services were unneeded. The Ohio River Valley Water Sanitation Compact was enacted by six state legislatures and received the consent of Congress in 1940.97 The compact did not become effective until 1948 because of delays in its enactment by other concerned state legislatures. It provides for the appointment of three commissioners by the President of the United States and three commissioners by the governor of each party state. The drafters of the compact assumed the commission would utilize the courts to enforce its regulations, but there has been no need for judicial enforcement. This compact has converted one of the most polluted rivers into one of the cleanest. The New Jersey state legislature and the New York state legislature enacted the Interstate Sanitation Compact (renamed the Interstate Environmental Compact in 2000), which received congressional consent in 1935 and the compact was enacted by the Connecticut general assembly in 1941.98 This compact is unique in specifying specific water quality standards for two classes of water (Art. VI–VII). The compact commission during its early decades

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concentrated on construction and improvement of wastewater treatment facilities, and achieved major successes. Article XI of the compact stipulates its provisions shall not “be construed to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory state imposing any additional conditions and restrictions to further lessen or prevent the pollution of waters within its jurisdictions.” Today, the commission possesses concurrent regulatory authority with the environmental departments of the three states, which have been granted by the U.S. Environmental Protection Agency (EPA) administrator regulatory primacy under the federal Clean Water Act, a partial preemption statute (see chapter 6).99 The commission in 1986 commenced to enforce its regulations more aggressively and antagonized the three state environmental protection departments, which were convinced the former should limit its activities to water pollution monitoring. This dispute was defused subsequent to the election of Republican Rudolph W. Giuliani as mayor of New York City in 1993 and Republican George E. Pataki as governor of New York in 1994. Today, the commission has good relations with the three departments and is viewed as filling gaps in the state regulatory programs and serving as a discussion forum for water pollution problems. Non-Commission Compacts Departments and agencies of party states administer thirty-three interstate compacts, including many service provision ones as illustrated by the children compacts. Two motor vehicle compacts in effect are regulatory ones. Article III of the Driver License Compact requires each of the forty-five party states to report each conviction of a driver from another party state for a motor vehicle violation to the home state licensing authority. Article IV of the compact directs the home state to treat the reported violation as if it occurred in the home state. Article V requires the licensing authority of each member state to determine whether an applicant for a driver license has held or currently holds a driver license issued by another party state(s). Article VI, a savings clause, authorizes a party state to apply any of its other statutes relating to a driver’s license and stipulates that the compact does not affect any driver license cooperative agreement between a party state and a non-party state. The Nonresident Violator Compact, enacted by forty-four state legislatures, seeks to ensure nonresident drivers answer appearance tickets or summonses for moving violations. The New York state legislature did not enact the compact, but did authorize the commissioner of motor vehicles to execute

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the compact. In common with the Driver License Compact, the Nonresident Violator Compact requires each member state to report each conviction of a driver from another party state for a motor vehicle violation to the home state licensing authority. This compact is designed to ensure nonresident motorists are treated in the same manner as resident motorists and the due process of law rights of nonresident motorists are protected. A driver failing to response to the appearance ticket or summons will have his license suspended by the issuing state. Both compacts have been successful. Interstate Administrative Agreements Many state department heads have been empowered by their respective state legislature to sign formal administrative agreements with their counterparts in other states and/or Canadian provinces or Mexican states.100 In 2000, for example, eastern Canadian provincial premiers and New England state governors entered into a series of agreements involving emergency assistance, higher education, and trade.101 As noted, interstate administrative agreements are not subject to the consent of Congress and therefore are a more flexible mechanism than a compact to promote conjoint actions. In addition, the wording of a compact and the wording of an administrative agreement may be identical, as illustrated by the Connecticut River Anadromous Fish Restoration Interstate Compact and the Merrimack River Anadromous Fish Restoration Interstate Administrative Agreement. Furthermore, state officers have entered into a large number of informal (verbal) administrative agreements, which are very flexible as each can be changed by another informal agreement. Current formal administrative agreements involve, in addition to the above three fields, agriculture, criminal justice, emergency assistance, enforcement of consumer protection laws, environmental protection, fisheries, insurance regulation, libraries, licensing, lotteries, plant pests, recycling of waste products, river basin studies, taxation, traffic and parking violations, transportation, and welfare fraud. Congress facilitated the formation of a number of interstate administrative agreements by enacting statutes exempting states from the interstate and foreign commerce clause and antitrust laws, and authorizing federal officers to join the agreements as signatories and to provide financial support in certain instances. Congress, for example, in 1948 exempted states with an interstate lottery agreement from the prohibition of the transport of lottery tickets in interstate or foreign commerce.102 Federal officers are signatories of the Merrimack River Anadromous Fish Restoration Interstate Administrative Agreement. In 1994, Connecticut, New York, and officers signed an agreement to protect the ecosystem of Long Island Sound by renovating sewage treatment plants and reducing nonpoint pollution sources.103 And in 1996,

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Governor George E. Pataki of New York, Governor Howard Dean of Vermont, and EPA representatives signed a comprehensive Lake Champlain water quality management plan.104 Congress facilitated uniform interstate taxation of motor carriers’ fuel and motor carrier registration. Arizona, Iowa, and Washington launched a cooperative fuel use plan in 1983 and sixteen states were members when Congress enacted the Motor Carrier Act of 1991 encouraging states to enter into the International Fuel Tax Agreement and the International Registration Plan.105 Forty-eight states and the ten Canadian provinces are members of the fuel agreement that is administered by the international fuel tax association incorporated by members in 1991.106 Alaska, District of Columbia, Hawaii, and the Northwest Territory and the Yukon Territory in Canada are not members. Each motor carrier is required to have a base jurisdiction responsible for assessing and collecting taxes owed by the carrier for fuel use in members’ jurisdictions and distributing part of the revenues to each of the other jurisdictions based upon the amount of travel in each. The agreement benefits carriers in terms of one license, one set of credentials, one quarterly fuel tax report indicating the tax or refund due, and one audit, which results in cost and time savings. The international registration plan was established in 1973 to administer cooperatively a commercial motor carrier registration reciprocity agreement for carriers traveling in two or more jurisdictions with licensing fee revenues shared based on fleet miles operated in each jurisdiction. All states and all Canadian provinces are members. Each carrier must file applications with the jurisdiction in which the carrier is based. This base jurisdiction issues registration credentials—a cab card listing the jurisdictions in which the vehicle is registered, registration weight, plates, and stickers—roadside enforcement officers use to validate and verify registration. Plan members are required to recognize the documents as authorization for a motor carrier’s vehicle to operate in the jurisdictions listed on the cab card. Specific registration schedules and fees are determined by each jurisdiction. The base jurisdiction collects the fees for apportionment to members according to (1) percentage of mileage travel in each jurisdiction, (2) vehicle identification information and maximum weight, and (3) value, age, unladen weight, and other factors in certain jurisdictions.

Summary, Conclusions, and Recommendations Interstate compacts, entered into by sister states and Canadian provinces in certain instances, have made concrete the abstract constitutional interstate

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compact clause and extend the territorial reach of each member state. The use of the compact device, primarily to establish state boundary lines, underwent a major change with the enactment the Port of New York Authority Compact in 1921 by the New Jersey state legislature and the New York state legislature, and subsequent experience reveals that the device possesses great potential as a mechanism facilitating regional and national cooperation by states in a wide variety of advisory, regulatory, and service provision fields. A regulatory compact can be national in scope, with all states, the District of Columbia, the Commonwealth of Puerto Rico, territories, and possibly Canadian provinces and Mexican states as members, but the prospects of persuading each state legislature to enact a draft compact are not good based upon experience to date. Alternatively, there could be several regional interstate regulatory compacts on a given subject tailored to the particular needs of each region. If the goal is to include all states as members, an opt-out procedure, such as Section 4 of Article VII of the Interstate Insurance Product Regulation Compact drafted by the National Association of Insurance Commissioners, will increase the prospect that each state legislature will enact the compact, but the price may be considerably less regulatory uniformity, thereby increasing the threat of congressional enactment of a statute preempting state authority over part or all of the regulatory field, including an interstate compact. A regulatory compact will be a more flexible interstate instrument if it grants the administering commission broad discretionary authority to adopt and revise bylaws, thereby avoiding the need for amendment of the compact and the hazardous process of obtaining all necessary approvals, legislative and gubernatorial, for an amendment. Consideration should be given to including in a regulatory compact a provision specifying that the commission in promulgating rules and regulations must follow the procedures outlined in the uniform state law commissioners’ Model State Administrative Procedures Act (1981) or the Federal Administrative Procedure Act of 1946 as amended or directing the commission to include similar administrative procedures in its bylaws. The first draft of the Interstate Insurance Product Regulation Compact stipulates the use of a rule-making process substantially conforming “to the principles of the federal Administrative Procedure Act” (Art. VII, §2).107 This act, however, lacks several notice and comment components found in the Model State Administrative Procedures Act. The revised Interstate Insurance Products Regulation Compact, enacted by thirty-four state legislatures and the Puerto Rico legislature, incorporates the Model State Administrative Procedures Act. The argument can be advanced that any commission established by an interstate compact that received congressional consent must follow the federal act in view of the U.S. Supreme Court Ruling in Cuyler v. Adams,

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described above, holding that consent converts a compact into federal law. It should be noted that the supremacy of the law clause of the U.S. Constitution provides for the supremacy of a national law in the event of a direct conflict with a state law. It must be emphasized that the process of negotiating compacts to resolve complex issues typically is very time-consuming and on a number of occasions has not been successful. Drafting negotiations, however, are only the first step in the compacting process and securing legislative enactment of a successfully negotiated agreement by all of the concerned states often proves to be difficult. Implementation of a compact in several instances has not occurred because of the failure of the governor to execute the compact or to obtain congressional consent. The prospects for obtaining congressional consent for certain types of compacts are improved if representatives of concerned federal departments and agencies participate in the negotiations leading to a draft compact, as they are apt to be advocates of the granting of consent by Congress. Should states negotiate a compact affecting federal interests without involving federal representatives in the negotiations, Congress will be less willing to grant its consent. Similarly, Congress may enact a regulatory statute preempting state authority, including that of a compact commission, if Congress perceives the need for national regulatory uniformity. Congress should authorize states party to a compact to enter into supplemental agreements with each of the compacting states, as Congress did in granting consent to the Emergency Management Compact.108 The granting of such flexibility will enhance the goal achievements of the compact without encroaching upon the powers of Congress. The national legislature could facilitate the formation of compacts by enactment of a statute granting blanket consent to all compacts entered into, with the proviso that the compacts will not become effective until a certified copy is sent to each house of Congress, which by a concurrent resolution within sixty days may reject a compact. States have sought the consent of Congress whenever a proposed compact would encroach upon the powers of Congress, as illustrated by the New England Dairy Compact. Hence, enactment of this recommendation rarely will result in Congress rejecting a compact. Interstate administrative agreements also play an important role in perfecting the economic union and the political union. These agreements can be implemented and/or changed more quickly than an interstate compact and may contain the identical or nearly identical wording of an interstate compact. In sum, the grant of congressional consent to interstate compacts gives an extraterritorial reach to the laws of the party states without reducing the

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regulatory powers of the states. The experience of the Waterfront Compact for New York Harbor, upon receipt of congressional consent, demonstartes that the newly created commission quickly removed corruption and other illegal activities that could not be curtailed by New Jersey and New York acting individually. Chapter 6 examines the subject of state-friendly congressional preemption and preemption relief statutes enacted to date.

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CHAPTER SIX

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he U.S. Constitution delegates specific regulatory powers to Congress and reserves other regulatory powers including concurrent ones to the states. To resolve conflicts between national and state regulatory statutes based upon concurrent powers, the drafters of the U.S. Constitution included in Article VI the supremacy of the laws clause stipulating: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land, and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Hence, a congressional regulatory statute either completely or partially supersedes a state law on the same subject. Numerous preemption statutes contain one or more savings clauses exempting specified state laws from preemption (see chapter 2). In the absence of congressional regulatory statutes, the so-called silence of Congress, nonharmonious state laws became common in the latter part of the nineteenth century and weakened the economic union and the political union created by the U.S. Constitution. Congress was slow to exercise its preemption powers to establish uniform regulations and only twenty-nine preemption statutes were enacted prior to 1900.1 The pace of enactment of such statutes increased gradually during the first five decades of the twentieth century, but accelerated rapidly commencing in the 1960s, and a total of 609 such laws were enacted by June 1, 2009. The advent of a Congress controlled by the Democrats in 2007 resulted in only eight preemption bills sent to the president and all were relatively minor ones: The Andean Trade Preference Act was extended from June 30, 2007, to February 29, 2008, and again extended to December 31, 2008, the Internet Tax Freedom Act was extended for three years, restrictions on imports from Burma were renewed, the terrorism risk insurance program was reauthorized, the United States–Peru Trade Promotion Agreement was implemented, the Fair Minimum Wage Act

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was enacted, and amendments were made to the Food and Drug Administration Act. None of the acts removed significant regulatory powers from the states. Congress enacted fifteen preemption statutes in 2008. Criticism of congressional preemption statutes by many state and local government officers should not obscure the fact preemption statutes can be state-friendly by facilitating state action(s) and may have been requested by state government officers. Minimum standards preemption acts in particular encourage state legislatures to exercise certain of their reserved powers, including latent ones, more extensively to the benefit of their citizens. Congress reacted sympathetically to the request of state officers, especially governors, by enacting the Commercial Motor Vehicle Safety Act of 1986, a preemption statute described below, because they reported states could not solve a highway safety problem by means of interstate cooperation.2 This chapter reviews briefly congressional statutes, including mandate relief ones and innovative ones, offers recommendations for amendment of certain preemption statutes to make them more state friendly, and recommends enactment of a new type of preemption statute. Information on state-friendly provisions in congressional statutes devolving powers upon states is reviewed in chapter 2.

Preemption Statutes The drafters of the U.S. Constitution, perhaps unwittingly, delegated exceptionally broad latent regulatory powers to Congress reinforced by the supremacy of the laws clause, thereby allowing the national legislature to restructure part of the federal system by removing completely or partially regulatory powers from states.3 These powers were employed only occasionally during the first 220 years of the federation and did not produce major systemic changes. Congress commenced in 1965 to enact major preemption statutes more frequently in fields that previously had been the exclusive responsibility of the states and to include mandates and restraints in a number of the acts. A preemption statute may vary in length from one page to hundreds of pages and may contain a very specific preemption provision(s) or be a skeleton law establishing broad goals and authorizing a U.S. department or agency to promulgate detailed implementing rules and regulations. These statutes may be classified as complete, partial, and contingent. The first type is a field preemption one removing all regulatory authority from states as illustrated by the Copyright Act of 1790.4 The second type is a field preemption act, such as the Federal Railroad Safety Act of 1970 (see chapter 2), authorizing

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states to enforce the national law.5 It should be noted a number of statutes appearing to be complete field preemption ones contain a “saving clause” exempting a specified type(s) of state or local governmental action from preemption. Such clauses can be viewed as congressional facilitating ones. The third type is partial preemption, which assumes four forms. The first form removes state regulatory powers in part of a field, for example, by stipulating in the Truth in Lending Act of 1968 that only state law provisions inconsistent with the act’s provisions and regulations promulgated under the authority of the act are preempted.6 The second form establishes national regulatory standards and allows states to continue to regulate provided their respective standards are as stringent or more stringent than the national ones, the states have qualified personnel and necessary equipment, and the standards are enforced. The Water Quality Act of 1965 authorizes the U.S. Environmental Protection Agency (EPA) to promulgate minimum national regulatory standards and to delegate regulatory primacy to a state submitting a plan meeting the above requirements. Under such primary, only the state regulates and EPA’s roles are monitoring the state’s performance in terms of compliance with and enforcement of the national standards, and provision of funds and technical assistance (see below). The third form allows a state to establish a regulatory standard(s) more stringent than the national one without submitting its standard(s) to a U.S. department or agency for advance approval. The fourth form authorizes a state unilaterally to establish a procedural standard more stringent than the national one. The fourth type is a contingent preemption statute applicable to a state only if (1) a specified condition(s) exists in the state, or (2) a state fails to enact a harmonious regulatory policy in a field by a prescribed date, or (3) a state fails to comply with the comprehensive plan developed by the Atlantic States Marine Fisheries Commission. Preemption Relief Statutes Chief Justice John Marshall of the U.S. Supreme Court in Gibbons v. Ogden in 1824 referred to the broad latent interstate commerce power of Congress and opined, “[T]he wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are . . . the sole restraints on which they have relied to secure them from its abuse.”7 This statement raises the question whether Congress considers seriously and responds to the views of the states relative to preemption bills and relief from preemption statutes. Herbert Wechsler in 1953 drew upon the Marshall statement to develop what has become known as the political safeguards theory of federalism

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positing states can employ the political process established by the U.S. Constitution to persuade Congress to reject bills preempting the regulatory powers of states and their political subdivisions.8 In 1985, Justice Harry A. Blackmun of the U.S. Supreme Court, writing for the majority, relied in part upon this theory to uphold the constitutionality of a congressional preemption statute and opined “the principal and basic limits on the federal commerce power is inherent in all state participation in federal government action.”9 State and local governments opposed the statute in question—extending national minimum wage and overtime pay requirements to nonsupervisory employees of subnational governments—because of the heavy new fiscal burden placed upon them (see below). Based upon the Marshall, Wechsler, and Blackmun theses, has Congress responded favorably to the petitions of state and local government officers seeking relief from preemption requirements? The evidence is mixed but weighted in favor of a no answer as only six preemption relief statutes have been enacted. The Clean Air Amendments of 1970 were a sharp departure from the earlier congressional approach to air pollution abatement, which relied upon state and local governments to provide the necessary leadership and took into consideration the economic and technical feasibility of abatement controls.10 Direct federal action to protect public health was made national policy, and explicit dates for adoption of standards and abatement plans by states were specified. In contrast to earlier standards, the new ones were mandated without considering the economic or technical feasibility of pollution abatement systems. Responding to the amendments, Governor Nelson A. Rockefeller of New York in April 1973 transmitted a plan, developed in cooperation with Mayor John V. Lindsay of New York City, to the EPA administrator. The plan provided for the imposition of transportation controls, including mandatory vehicle emission inspection, tolling of East River and Harlem River bridges in New York City, and other remedial actions. Newly elected Mayor Abraham Beame in 1975 attempted without success to have the plan amended to eliminate the requirements for tolling of the bridges and vehicle emission inspection. He and other city officers mobilized the New York State congressional delegation to work for the inclusion of a provision—the Moynihan-Holtzman Amendment—in the proposed Clean Air Act Amendments of 1977 directing the EPA administrator to delete from a transportation control plan a requirement for the tolling of bridges upon application of the governor of the concerned state.11 The provision was incorporated into the enacted amendments, Governor Hugh L. Carey on October 19, 1977, notified the EPA administrator, and the requirement was deleted from the plan on November 28, 1977.12

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The U.S. Supreme Court in National League of Cities v. Usery invalidated provisions of the Fair Labor Standards Act Amendments of 1974 extending federal minimum wage and overtime pay standards to nonsupervisory employees of subnational governments and opined the amendments threatened the “separate and independent existence” of these governments.13 Shortly thereafter, the Court commenced to retreat from this ruling and in Garcia v. San Antonio Metropolitan Transit Authority in 1985 reversed its 1976 decision by upholding the constitutionality of the applicability of the federal standards to subnational governmental nonsupervisory employees.14 Subnational governments implored Congress to grant relief from the Court’s decision and Congress promptly responded by enacting the Fair Labor Standards Amendments of 1985 authorizing state and local governments to offer their employees compensatory time off at a rate of one and one-half hours for each hour of overtime work in lieu of overtime compensation, clarifying that the national labor standards do not apply to volunteers, and granting state and local legislative employees the same exemptions from the standards as those for employees of Congress.15 Congress enacted the Age Discrimination in Employment Act of 1967 to protect older citizens against employment discrimination.16 The act was amended in 1982 to prohibit employers requiring employees to retire because of age.17 As the act applied to states and their political subdivisions in their capacities as employers, protests were made by these governments with respect to the application of the amendment to firefighters and police whose physical strength declines as they grow older. Congress listened and responded to the complaints by enacting the Age Discrimination in Employment Amendments of 1986, which stipulate it is not unlawful for a state or a political subdivision “to fail or refuse to hire or to discharge any individual because such individual’s age if such action is taken (1) with respect to the employment of an individual as a firefighter or a law enforcement officer and the individual has attained the age for hiring or retirement in effect under applicable State or local law on March 3, 1983, and (2) pursuant to a bonafide hiring or retirement plan that is not a subterfuge to evade the purposes of this Act.”18 This provision automatically expired on December 31, 1993. The Surface Transportation Assistance Act of 1982 (STAA) allows heavy trucks and tandem trailers to utilize interstate highways, many federally aided primary routes designated by the secretary of transportation, and local access roads to motels, restaurants, service stations, and terminals.19 This act produced confusion relative to responsibility for public highway safety with numerous state and local government officers complaining to Congress that many highways, including those with interstate designations constructed prior to the establishment of the interstate highway system, could

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not accommodate safely heavy trucks and tandem trailers. Furthermore, the act contained no criteria for the determining which local roads are bona fide “access” routes. STAA is the product of lobbying by the trucking industry, which was frustrated with conflicting state truck size and weight limits in the various states necessitating, for instance, the driver of a triple rig to decouple one or two trailers at the border of certain states prior to entering them. The act became more controversial when Congress amended it in 1983 to allow 102 inch-wide trucks on all federally designated highways provided lane widths exceed twelve feet.20 Congress listened to the views of state and local government officers and provided a degree of relief by enacting the Tandem Truck Safety Act of 1984 and the Motor Carrier Safety Act of 1984.21 The former act authorizes a state governor, subsequent to consulting affected local governments, to notify the secretary of transportation that the governor determined a specific segment(s) of the interstate highway system “is not capable of safely accommodating motor vehicles” of the length permitted by STAA or 102 inch-wide vehicles other than buses.”22 The safety officers’ concerns about local access roads were addressed by stipulating “nothing in this section shall be construed as preventing any State or local government from imposing any reasonable restriction, based on safety considerations, on any truck tractor-semi-trailer combination in which the semi-trailer has a length not to exceed 28 ½ feet and which generally operates as part of a vehicle combination” as described by the act.23 The latter act directed the secretary of transportation, within eighteen months, to promulgate regulations establishing minimum safety standards for commercial vehicles ensuring that (1) commercial motor vehicles are safely maintained, equipped, loaded, and operated, (2) the responsibilities imposed upon operators of commercial motor vehicles do not impair their ability to operate such vehicles safely, (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate such vehicles safely, and (4) the operation of commercial motor vehicles does not have deleterious effects on the physical condition of such operators.24 The act also established a safety panel to advise the secretary of transportation relative to whether a “state law or regulation is additional to or more stringent than a regulation issued by the Secretary.”25 Such a law or regulation may be enforced five years after the enactment of the national act unless the secretary determines “(A) there is no safety benefit associated with such state law or regulation; (B) such state law or regulation is incompatible with the regulation issued by the Secretary; . . . or (C) enforcement of such state law or regulation would be an undue burden on interstate commerce.”26 In addition, any person may petition the secretary

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for issuance of a waiver from a determination of the secretary that a state law or regulation is preempted.27 These two acts defused major controversies between the federal government and subnational governments by offering reasonable relief from the original preemption statutes, and demonstrate that Congress can respond favorably to the views and recommendations of state and local government officers. U.S. Representative Guy Molinari of Staten Island inserted in the Department of Transportation and Related Agencies Appropriation Act of 1986 a stipulation that tolls for motor vehicles on any bridge connecting Brooklyn and Staten Island, New York, shall be collected only as vehicles exit the bridge in Staten Island, thereby allowing motorists from the island to enter Brooklyn without paying a toll and return to the island via the westward toll-free tunnels under the Hudson River to New Jersey and a connecting toll-free bridge to the island.28 Relief from this stipulation is contained in the act as it authorizes the secretary of transportation to remove the requirement upon the petition of the governor of New York State. No such petition has been filed to date. The Safe Drinking Water Act of 1974 is a minimum standards preemption act authorizing EPA to approve a plan submitted by a state establishing standards as stringent or more stringent than national standards and demonstrating that the state has qualified personnel and adequate equipment, and to delegate regulatory primacy to the state.29 If a state fails to submit a plan or submits an inadequate plan, EPA becomes completely responsible for regulating drinking water in the state. In 1986, Congress broadened the coverage of the act by enacting national standards for underground drinking water sources.30 Previously, EPA relied upon enforcement authority scattered in several sections of the United States Code and the Code of Federal Regulations to initiate remedial action to protect subterranean sources of drinking water. This act also includes schedules and precise dates by which EPA was required to establish maximum contaminant level goals and to promulgate minimum drinking water quality standards to expedite subnational governmental action to improve and protect the quality of drinking water.31 In addition, the amendments include several expensive unreimbursed mandates whose implementation, particularly filtration requirements that would impose potential major costs on large cities. The amendments posed the threat of bankruptcy for numerous small local governments and also placed an additional major financial burden on larger local governments. The act provides for prompt federal enforcement if a state has not commenced action within thirty days of being notified by the EPA administrator that a public water system must be made to comply with national standards.

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The potential impact of the amendments is clear relative to New York City, which obtains drinking water from large reservoirs in the Catskill Mountains located approximately 90 to 120 miles northwest of the city. To meet the national drinking water quality mandates, the city was faced with the alternative of constructing a water filtration plant in the Bronx at an estimated cost of two billion dollars or providing funds to small towns and villages in the reservoir drainage area to construct modern sewage treatment plants and working with farmers to eliminate drainage of fertilizer and manure into the reservoirs. Congress provided relief from the burdensome mandates by enacting the eighty-page Safe Drinking Water Act Amendments of 1996, thereby removing the necessity for small local governments in particular to choose between filing for municipal bankruptcy protection or closing their public water systems.32 The congressional action removed a major financial burden from large cities, which no longer were required to filter their public water provided other actions were initiated to ensure high water quality, including prevention of runoff from farms into water reservoirs. The amendments declare that “in considering the appropriate level of regulation for contaminants in drinking water, risk assessment, based on sound and objective science, and benefit-cost analysis are important analytical tools for improving the efficiency and effectiveness of drinking water regulations to protect human health”33 Furthermore, the EPA administrator no longer is required to establish health standards for twenty-five additional contaminants during each three-year period, but is directed to establish standards for arsenic, sulfate, and radon in drinking water.34 State and local governments are authorized to establish priorities and to dedicate their resources to solving drinking water problems presenting the greatest threats to public health. For the first time, suppliers of drinking water must provide consumers with information on the source(s) of its water and its quality and notify consumers promptly if there is a violation of the quality standards. Small public water systems no longer are required to test for contaminants that never have been found provided they obtain a waiver from their respective state. The act allows states, which exercise primary enforcement responsibility for water quality, to grant a variance to each public water system serving 3,300 or fewer persons that cannot meet the “affordability criteria” established by the EPA administrator provided the terms of the variance adequately protect public health.35 The act addresses the New York City water supply system by authorizing financial assistance up to 50 percent of the cost of the protection program to enhance the quality of the water, and demonstration projects. In 1995, Governor George E. Pataki of New York, New York City Mayor

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Rudolph Giuliani, EPA Region 2 Administrator Jeanne M. Fox, and local government officers in the Catskill and Hudson Valley regions signed an agreement to protect the city’s water supply and thereby obviate the need for filtration of the water.36 The Energy Policy Act of 2005 seeks to facilitate the siting of interstate electric transmission facilities by means of a contingent preemption provision.37 If a state commission fails to approve the siting of necessary facilities for one year, the Federal Energy Regulatory Commission is authorized to issue one or more permits for the construction of transmission lines. A state needing more electrical energy views favorably this preemption provision in contrast to the state which is opposed to the lines.

Innovative Preemption Statutes Historically, congressional preemption statutes either completely superseded the regulatory powers of states in a given field or occupied only a part of the field. This section commences with a description of the innovative type of preemption statute that has had the greatest impact on the nature of the federal system. Minimum Standards Preemption Until 1965, Congress had not enacted a regulatory environmental statute, and states consequently were completely responsible for environmental protection. A state legislature, however, generally was reluctant to initiate necessary action to solve a major environmental problem adversely affecting neighboring states or nations. Bills mandating high regulatory standards designed to protect the environment were opposed by some industrial firms and labor organizations for fear polluting industrial firms would leave the state and thereby increase unemployment, and other firms would be reluctant to locate factories in the state because of the added costs associated with compliance with the standards. The growing public awareness of environmental degradation in the early 1960s and the increasing influence of environmental protection organizations promoted the filing of bills in Congress to address the problem. The congressional solution was an innovative preemption statute authorizing EPA to promulgate minimum national regulatory standards and establish a national-state regulatory partnership (see chapter 2). So-called asylum or industrial haven states with no or low environmental standards are eliminated by this type of preemption, which dates to the Water Quality Act of 1965 (now Clean Water Act) and also is employed in the Air Quality Act

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of 1967 (now Clean Air Act), Safe Drinking Water Act of 1974, and Surface Mining Control and Reclamation Act of 1977.38 The latter act is administered by the U.S. Department of the Interior. This type of partial preemption act differs significantly from complete preemption statutes and other types of partial preemption statutes and may be viewed as a contingent complete preemption act, as a state will lose all regulatory authority in the field if the state fails to apply to EPA or the Department of the Interior for a grant of regulatory primacy by submitting a plan containing standards meeting or exceeding the national ones and evidence the state has the necessary qualified staff and equipment to enforce the standards. Under such a grant, regulation is the sole responsibility of the state and the role of the federal body is monitoring the state to ensure the regulatory standards are enforced. A minimum standards air, water, or safe drinking water preemption act establishes a national-state administrative partnership to address an important environmental problem. Each state has input into the EPA’s administrative rulemaking process to establish minimum national standards and the option of applying to EPA for regulatory primacy or allowing EPA to administer the concerned program in the state. All states have applied for and been granted such regulatory primacy, although on occasion a state has returned primacy to EPA for a period of time. The Surface Mining Control and Reclamation Act establishes a similar procedure. The Clean Air Act and the Clean Water Act each facilitates a solution to two types of interstate relations problems. Prior to these acts, a downriver state or a downwind state suffering adverse consequences flowing from pollutants emitted in the upriver or upwind state had only one legal course of remedial action, and that was to file a petition and a supporting brief in the U.S. Supreme Court seeking to invoke its original jurisdiction and its express permission for leave to file a complaint in equity against another state(s).39 The Court uses its discretion to determine whether to invoke its original jurisdiction by inquiring whether (1) each party state is a genuine party or the complainant state is representing private parties, (2) the complaint is a justiciable controversy, and (3) the dispute is an appropriate one for the Court to review. The Court generally is reluctant to invoke its original jurisdiction as it interferes with what the Court considers to be its most important function, deciding appeals, and in a number of instances it has suggested that the concerned states should seek to resolve their disputes by means of negotiations or an interstate compact. When the Court invokes its original jurisdiction, the adjudication process is expensive for the concerned states and time-consuming, as the Court appoints a special master to collect facts in the dispute and, if autho-

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rized by the Court, to draft recommendations that could be incorporated in the Court’s decree. Under the Clean Air Act and the Clean Water Act, a state suffering adverse environmental consequences of pollutants originating in another state can pressure the EPA to require the upstream or upwind state(s) to curtail the discharge of pollutants if they exceed the applicable national minimum standards. It should be noted that the Occupational Safety and Health Act of 1970 combines minimum national standards preemption with the traditional imperium in imperio (empire within an empire, or dual federalism) system.40 The act importantly provides that “nothing in this Act shall prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no standards is in effect under section 6.”41 This facilitating provision ensures that a state may act to protect workers in the event the national standards are inapplicable to a specific threat to the health or safety of workers. The Toxic Substances Control Act of 1976 contains a nearly identical provision permitting a state to continue to regulate chemical substances or mixtures until the EPA administrator promulgates a rule or issues an order applicable to a substance or mixture designed to protect public health.42 States may continue to regulate after the promulgation of a rule if a subnational government petitions the EPA administrator for authority to regulate and he/she determines the proposed state standards provide a higher degree of protection against injury to the environment or public health than the national standards without unduly burdening interstate commerce.43 Consistent with or More Stringent State Standards Congress enacted several partial preemption acts authorizing state regulation in a given field provided state standards are consistent with or more stringent than counterpart national standards (see chapter 2). These acts differ from minimum standards preemption described above as a state is not required to obtain permission in advance from the appropriate federal department or agency prior to enforcing their standards. Two facilitating acts grant regulatory authority to states for intrastate inspection provided state standards are consistent with federal standards. The Wholesome Meat Act of 1967 is a limited preemption act that grants authority to the secretary of agriculture to inspect meat and transfer responsibility for intrastate meat inspection to a state with a statutory law requiring meat inspection and reinspection consistent with national standards.44 The act also authorizes a state to transfer responsibility for such inspection to the

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U.S. Department of Agriculture. The Poultry Products Inspection Act of 1968 contains similar provisions.45 Other Innovative Statutes Commencing with the Johnson Act of 1951, Congress included an opt-out provision in several preemption statutes. The Johnson Act made it a crime for an individual to transport a gambling device into a state, but authorizes each state legislature to enact a statute exempting the state from the prohibition under a section stipulating the prohibition does not “apply to any gambling device used or designed for use at or transported to licensed gambling establishments where betting is legal under applicable laws.”46 The Federal Environmental Pesticide Control Act of 1972 represents a distinctive congressional approach to restructuring national-state relations by authorizing a state to register “pesticides formulated for distribution and use within that State to meet special local needs if that State is certified by the EPA administrator as capable of exercising adequate controls to assure that such registration will be in accord with the purposes of this act and if registration for such use has not previously been denied, disapproved, or cancelled.”47 The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, respecting the history of the dual banking system established in 1864, empowers a state legislature to enact an opt-out statute prohibiting interstate branching within the state otherwise authorized by the act.48 Interestingly, the act also contains an “opt-in” section allowing a state legislature to permit interstate branching through de novo branches provided the state law is applicable equally to all banks and permits foreign banks (chartered in another state) to establish de novo branches.49 Two acts contain a provision similar to the above type of opt-out of a preemption statute by specifically granting authority to state legislatures to override the preemption. The first act—Nuclear Waste Policy Act of 1982—grants authority to a state governor or a state legislature to veto the site selected by the secretary of energy for a high-level radioactive waste facility subject to an override by Congress.50 In December 1987, Congress ignored the site selection procedure in enacting the Omnibus Budget Reconciliation Act of 1988 amending the 1982 act by removing potential sites in Texas and Washington, two of the three sites under consideration by the secretary, and thereby selecting Yucca Mountain site in Nevada subject to suitability tests.51 The Nevada governor disapproved the site, but Congress overrode the disapproval.52 The second act—Gramm-Leach-Bliley Financial Modernization Act of 1999—contains preemption provisions relating to insurance customer protections and directs the federal banking agencies—board of governors of the

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federal reserve system, comptroller of the currency, and board of directors of the Federal Deposit Insurance Corporation—to determine whether the provisions of regulations promulgated under the act offer greater protection than that offered by state statutes and regulations.53 If the agencies determine any federal provision “affords greater protections than a comparable State law, rule, regulation, order, or interpretations,” the agencies are directed to send a written preemption notice to the appropriate state department or agency “that the Federal provision will preempt the State provision and will become applicable unless . . . the State adopts legislation to override such preemption” within three years.54 The Coastal Zone Management Act of 1972 may be termed a reverse preemption statute and stipulates that a state coastal zone management program approved by the secretary of commerce prevents a federal department or agency from issuing a license or a permit to a private applicant to undertake an activity if the concerned state objects to the application.55 The state veto may be overridden by the secretary and Congress. The Interstate Horseracing Act of 1978 devolves several powers to states, including a reverse preemption power.56 A state legislature may override or preempt the congressional prohibition of interstate off-track wagering. Interstate simulcasts of horse races require the consent of state agencies and a horsemen’s association. The act was challenged on the ground it restricted commercial free speech and the U.S. District Court for the Eastern District of Kentucky in 1993 granted summary judgment by holding the act violates the First Amendment, is unconstitutionally vague, and is an irrational means to achieve a permissible goal.57 This decision was reversed by the U.S. Court of Appeals for the Sixth Circuit, which held the act does not regulate commercial speech in view of the fact that off-track wagering can occur in the absence of simulcasting, the act regulates a very narrow subject and hence a “less strict vagueness test” is applicable to the act, and it “does not delegate legislative power to private parties.”58 A third reverse preemption section is contained in the Port and Tanker Safety Act of 1978 and stipulates the requirement for a federally licensed pilot on tankers engaged in foreign commerce in navigable waters is preempted when a state legislature enacts a law mandating state-licensed pilots on these tankers and notifies the secretary of transportation.59 A similar administrative regulation promulgated by the U.S. Coast Guard is the product of the Coast Guard Authorization Act of 1984, which directs the U.S. Secretary of Transportation to develop standards for determining whether a marine recreational vessel operator is intoxicated.60 The Coast Guard, currently a unit of the Department of Homeland Security, in 1987 promulgated a rule providing a state blood alcohol content (BAC) standard, if one exists, is the national standard within the state. In consequence, the

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national standard (0.8 percent BAC) is applicable only in states lacking a BAC standard. Congress in 1996 revised, recodified, and added a new section to the transportation statutes providing, as of September 30, 1996, that a state “may establish, maintain, or enforce a law or regulation that has a fuel use tax reporting requirement (including any tax reporting form) only if the requirement conforms with the international fuel tax agreement.”61 The section seeks to establish a uniform fuel use tax reporting system for trucking companies by encouraging states to adopt the agreement (see chapter 5). The 1996 act also encourages states to join the international registration plan and is respectful of state sovereignty because the agreements were developed and may be amended by the participating states and Canadian provinces. The Electronic Signatures in Global and National Commerce Act of 2000 preempts completely the digital signal laws of forty-four states with respect to interstate and foreign commerce, but exempts from preemption any state law or rule constituting “an enactment or adoption of the uniform electronic transaction act as approved and recommended for enactment in all states by the national conference of commissioners on uniform state laws.”62 The 1986 amendments to the Atlantic Striped Bass Conservation Act include a contingent prevention provision requiring states to comply with the management plan developed by the interstate compact created Atlantic States Marine Fisheries Commission, which lacks enforcement powers, or be subject to a striped bass fishing moratorium imposed by the U.S. Fish and Wildlife Service. The Gramm-Leach-Bliley Financial Modernization Act of 1999 also contains a contingent preemption provision threatening the establishment of a federal system of licensing insurance agents if twenty-six state legislatures did not enact by November 12, 2002, harmonious licensing statutes as determined by the National Association of Insurance Commissioners (NAIC).63 Thirty-five states were certified by NAIC on September 10, 2002 as having enacted such statutes. We termed the Abandoned Shipwreck Act of 1987, a complete preemption statute, a state-friendly one.64 Many abandoned historic shipwrecks have been located by new technological instruments, but legal problems were created with respect to the ownership of each abandoned shipwreck. Congress solved this problem by asserting a federal government title to each such shipwreck and directing the transfer of the federal title to the state within whose waters the shipwreck is located. Unfunded Mandates Reform Act of 1995 State complaints about burdensome mandates and restraints contained in certain preemption statutes were heard by Congress, which amended several

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laws to reduce the burden and enacted the Unfunded Mandates Reform Act of 1995.65 The act is prospective in nature and does not apply to existing intergovernmental sector or private sector unfunded mandates, or to a bill, joint resolution, or a provision in a proposed or final federal regulation that “enforces constitutional rights of individuals,” prohibits discrimination, provides emergency assistance, involves national security or implementation of the obligations of a treaty with a foreign nation, or relates to the old-age, survivors, and disability insurance program.66 Each congressional committee reporting to the floor a bill or joint resolution must provide a copy to the director of the Congressional Budget Office and include in its report identification of new federal mandates and estimated state and local government implementation costs.67 In addition, the committee report must “contain, if relevant to the bill or joint resolution, an explicit statement on the extent to which the bill or joint resolution is intended to preempt any state, local, or tribal law, and, if so, an explanation of the effect of such preemption.”68 It should be noted that numerous congressional statutes have been held to be preemptive by courts in the absence of a clear statement of intent to preempt. The director of the Congressional Budget Office, upon finding that intergovernmental mandates in a bill will exceed fifty million dollars in the first year of imposition, must prepare estimates of the total costs and an explanation of how the estimates were made.69 The act established a new procedure for each house of Congress by allowing a member to raise a point of order if a committee report fails to contain the information required by the act or does not include “an authorization for appropriations in an amount equal to or exceeding the direct costs of such mandate.”70 If a point of order is made by a Senator and the “point of order” is sustained by the chair, the specific provision automatically is removed from the bill or resolution and may not be offered as a floor amendment. If a Representative raises a point of order, the member and an opponent each may debate the point of order for ten minutes and the matter will be determined by the House.

Innovative Nonpreemptive Statutes Congress enacted three innovative statutes that do not preempt the regulatory powers of state legislatures, but encourage them to enact uniform laws. In addition, Congress enacted two facilitating statutes clarifying two clauses of the U.S. Constitution, a third statute establishing the national instant criminal background check system, and a fourth statute authorizing reciprocal agreements with states to collect unpaid state and federal debts.

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The Hotel and Motel Fire Safety Act of 1990 encourages state legislatures to adopt federal standards by mandating federal government officers and employees to stay only in facilities meeting the safety standards specified by the Federal Fire Prevention and Control Act of 1974.71 Each state governor is authorized to provide the U.S. Administrator of General Services with a list of hotels and motels compliant with the federal fire safety standards. Furthermore, federal conditional grants-in-aid to state and local governments may not be used to sponsor or to pay for a conference, convention, meeting, or training seminar in a hotel or motel that does not meet the national fire safety standards. Congress enacted a nonpreemptive act containing regulatory guidelines which states were urged to adopt. The Mohammad Ali Boxing Reform Act of 2000 has three major goals: “(1) to protect the rights and welfare of professional boxers on an interstate basis by preventing certain exploitive, oppressive, and unethical business practices; (2) to assist State boxing commissioners in their efforts to provide more effective public oversight of the sport; and (3) to promote honorable competition in professional boxing and enhance the overall integrity of the industry.”72 The statute provides that the Association of Boxing Commissions, by a majority vote of its member state boxing commissions, must adopt “guidelines for objective and consistent written criteria for the ratings of professional boxers.”73 State boxing commissions are not mandated to follow the guidelines as the act simply stresses it is “the Sense of Congress” that the guidelines should be followed.74 Congress in recent years enacted a number of other statutes containing a “Sense of the Congress” clause in lieu of a preemption provision. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, for example, contains two such provisions: “(g) It is the sense of the Congress that in complying with this section, each State that operates a program funded under this part is encouraged to assign the highest priority to requiring adults in 2-parent families and adults in single-parent families that include older preschool or school-age children to be engaged in work activities. (h) It is the sense of the Congress that States should require noncustodial, nonsupporting parents who have not attained 18 years of age to fulfill community work obligations and attend appropriate parenting or money management classes after school.”75 Section 2 of Article IV of the U.S. Constitution establishes a facilitating procedure for the rendition of a fugitive from justice in an asylum state to the requesting state and thereby preventing the fugitive from escaping justice by fleeing to a sister state. Although not specifically authorized by the rendition clause, Congress enacted a 1793 rendition facilitating procedural statute stipulating, among other matters, only the governor of the

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state, district, or territory may return the fugitive to the demanding state and the constitutionality of the act was upheld by the U.S. Supreme Court in 1842.76 Section 1 of Article IV of the U.S. Constitution stipulates: “[F]ull Faith and Credit Congress shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Congress seldom employs its constitutional power by general law to “prescribe the manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.”77 In 1994, the Hawaiian supreme court interpreted the state constitution as permitting the marriage of two persons of the same sex and thereby generated a controversy throughout the United States. Pressure was brought on Congress to reverse the multistate implications of the decision by enacting a law facilitating the preservation of existing state marriage laws. Congress enacted the state-friendly Defense of Marriage Act of 1996 defining a marriage as “a legal union between one man and one woman as husband and wife” and the term “spouse” as “a person of the opposite sex who is husband or a wife,” and authorizing states to deny full faith and credit to “a marriage certificate of two persons of the same sex.”78 The Brady Handgun Violence Prevention Act of 1993 established the national instant criminal background check system, which is of invaluable assistance to state and local government law enforcement officers.79 The NICS Improvement Amendments Act of 2007 authorizes grants to states to automate their records of persons prohibited from possessing or receiving a firearm under federal or state law, and to improve the automation and transmittal of criminal history dispositions by state court systems.80 The Debt Collection Improvement Act of 1996 authorizes the federal government to collect unpaid state debts from federal payments to contractors and to turn the proceeds over to the concerned states provided they have entered into a reciprocal agreement with the U.S. Department of the Treasury providing for state collection of unpaid federal debts from state payments to contractors.81

Summary and Conclusions This chapter focuses upon state-friendly statutes, including ones with opt-in and opt-out provisions, preemption relief acts, the Unfunded Mandates Reform Act of 1995, acts with innovative features including those with a “Sense of Congress” provision in lieu of a preemption one, two statutes facilitating state actions relative to interstate rendition and the accordance of full faith and credit to the public acts, records, and statutes of sister states,

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and an act encouraging states to join the international fuel tax agreement and the international registration plan. The preemption relief acts and the Unfunded Mandates Reform Act support Wechsler’s political safeguards of federalism theory positing that states should employ the political process to fend off unwanted preemption bills and to obtain relief from burdensome and expensive provisions of acts containing mandates and restraints. It is apparent Congress could amend a number of complete and partial preemption statutes to make them more state friendly without hindering the achievement of national goals by following the examples of the state-friendly statutes described in this chapter. The concluding chapter (1) reviews each major type of congressional action facilitating state government action, (2) draws conclusions relative to each type (3) offers specific recommendations to Congress, the president, state legislatures, and governors to improve the economic union and the political union, (4) examines the two major theories of United States federalism, and (5) suggests a broader theory encompassing national-state, interstate, and state-local relations.

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CHAPTER SEVEN

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he U.S. Constitution established in the eighteenth century the world’s first federal system by creating a political union of states, in the form of a general government and individual state governments, and an economic union, both of which have proven to be exceptionally flexible and able to cope successfully with the exigencies of the twenty-first century. The systemic flexibility is attributable primarily to the ability of Congress to (1) devolve domestic powers to the states with the exception of coinage, (2) preempt completely or partially regulatory powers of the states and their political subdivision by exercising its delegated regulatory powers, (3) fund in part, with conditions, many state and local government regulatory and service programs, (4) grant its consent for two or more states to enter into an interstate compact and its consent-in-advance for specified compacts, and (5) propose constitutional amendments for ratification consideration by the states. Systemic flexibility also is a product of the U.S. Supreme Court’s invocation of its original jurisdiction to resolve interstate disputes, and its appellate jurisdiction to provide definitive interpretations of the provisions of the U.S. Constitution and congressional statutes, and to determine the constitutionality of congressional, state, and local laws.1 In addition, the flexibility is a product of state legislatures facilitating actions of the national government as V. O. Key Jr. explained in 1940.2 Congress in its first session in 1789 devolved the power to regulate marine pilots in ports to the states and continues to devolve powers facilitating initiation and implementation of state policies. Furthermore, Congress enacted a relatively large number of statutes to assist states in the enforcement of their respective criminal laws, authorized the Federal Bureau of Investigation through its fingerprint service and forensic laboratory to assist state and local government police in their criminal investigations, and funded, in part, specific state criminal justice programs.

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Establishment of a federal system with two sovereigns automatically produces latent overlapping national and state regulatory authority and a resulting problem of conflict-of-laws. Delegates to the 1787 Constitutional Convention considered a proposal to prevent the occurrence of such conflicts by deferring the effective date of state statutes and authorizing Congress to disallow statutes contravening the powers delegated to it. James Madison justified the proposed national negative on the ground state legislatures could “pass laws which will accomplish their injurious objects before they can be repealed by the General Legislature or set aside by the national tribunals.”3 The convention’s rejection of the national negative proposal was not surprising in view of the fact its adoption would reduce significantly the powers of the states, delay implementation of state statutes for months while Congress considered them, and permit Congress without constitutional criteria to declare state statutes ultra vires and possibly convert the federal governance system into a unitary one. The Constitutional Convention delegates sought to solve this potential web of regulation problems by authorizing Congress to restructure aspects of national-state relations by exercising a number of latent broad preemption powers, removing regulatory powers from states, supported by the supremacy of the laws clause. It is important to note the U.S. Constitution contains no guidelines or restrictions on employment of these powers other than the presidential veto or invalidation by courts. Congress exercised its displacement powers at a relatively slow pace until 1965 when preemption statutes were enacted at a faster pace and in new regulatory fields (see chapter 6).4 The reader should be aware that minimum standards congressional preemption statutes create a partnership regulatory system, with states solely responsible for regulating and the role of the national government departments and agencies restricted to monitoring state performance and providing financial and technical assistance to states. These statutes help to retain a system of diffused power, thereby avoiding an overcentralization of political power. Criticisms by state and local government officers of unfunded federal mandates, removal of state regulatory authority, and conditions attached to grants-in-aid should not blind the reader to the fact that Congress plays a major role in facilitating the initiation of actions by state governments. This chapter (1) reviews each type of congressional action facilitating state governmental action, (2) highlights the devolution of a number of congressional powers to states that offset to a limited extent the powers removed from states by preemption statutes, (3) offers recommendations to Congress, the president, state legislatures, and state governors for the initiation of actions to further perfect the economic union and the political union established by the U.S. Constitution in 1789, (4) examines the explanatory value of the two major theories of United States federalism, and

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(5) suggests in outline form a broader theory encompassing national-state, national-local, interstate, and state-local relations whose interactions are viewed most clearly through a kaleidoscope.

Devolution of Powers Chapter 2 examines devolution statutes and reveals that several are of great value to states in facilitating their efforts to solve public problems. The McCarran-Ferguson Act of 1945 is the most important devolution act and is the only one assigning complete responsibility to regulate a major interstate commerce regulatory field to the states.5 Although Congress subsequently enacted three statutes preempting in part state insurance regulatory authority, states remain the primary regulators of the business of insurance. There is agreement that states generally have regulated effectively the business of insurance, but nationalization and globalization of the economy increased the need for harmonization of state insurance statutes and administrative rules and regulations to speed the introduction of new insurance products on a national basis and an international basis. The National Association of Insurance Commissioners recognized the desirability of such harmonization and drafted several model acts and in 2004 released an Insurance Product Regulation Compact that created a commission with authority to receive, review, and approve or reject company filings of new insurance products. Thirty-four state legislatures and the Puerto Rico legislature by June 1, 2009, enacted the compact and it is anticipated most of the remaining state legislatures will do the same. Recently, a proposal has been advanced for an amendment of the compact to grant the commission regulatory jurisdiction for producer licensing and surplus lines. Numerous specific devolution provisions and savings clauses collectively bestow unrestricted or restricted powers on states. The importance of these devolutions varies considerably. Four statutes are the most significant environmental power devolutions and authorize the U.S. Environmental Protection Agency—clean air, clean water, drinking water—and the U.S. Department of the Interior—surface mining—to delegate regulatory primacy to states provided their standards meet or exceed the national standards and the states possess qualified personnel and equipment. Such primacy ensures that only states will regulate these critical areas subject to federal monitoring and financial and technical support. Some devolved powers are relatively insignificant and include (1) the requirement that all appraisals of properties involving federal government transactions must be made by state-licensed or state-certified appraisers, and (2) authorization for a state to register pesticides to meet special local needs.

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Several powers devolved to governors are important ones and alter the constitutionally established balance of powers between the governor and the legislature in each state. The most important power devolution to governors is the grant of authority, by the Clean Air Act Amendments of 1977, to redesignate areas in their respective states from Class I, where new pollution is not allowed, to Class III where air quality deterioration is permitted up to secondary standards, which are designed to prevent adverse environmental effects. National conditional grants-in-aid to states also alter the balance of power between a governor and a state legislature as executive agencies apply for grants and expend grant funds subject to possible state legislative reappropriation of the funds, as in New York. Devolution of certain enforcement powers to attorneys general allows them, particularly through multistate settlement agreements with large corporations, to establish regulatory policies. These settlements generate resentment by state legislators convinced the attorneys general are intruding on policymaking prerogatives of state legislatures. Devolution of powers has been beneficial to democratic control of governmental decision making by facilitating citizen participation in the process of determining public policies. Nevertheless, it must be admitted that there is a negative side to devolution. To date, Congress has failed to monitor state exercise of devolved powers to determine whether the powers should be amended or revoked. Furthermore, the numerous devolution statutes make it difficult for the citizenry to determine which government is responsible for certain functions. This confusion is most commonly attributable to savings clauses in preemption statutes. Only a detailed study of each devolution statute would allow the drawing of firm conclusions relative to effectiveness of these statutes in achieving their respective goal(s).

Congressional Facilitation of State Criminal Law Enforcement Chapter 3 documents national government efforts to facilitate state enforcement of many of their criminal statutes. Congress, in the Wilson Act of 1890, first assisted states in enforcing their respective alcoholic beverages laws and subsequently made frequent use of its delegated power to regulate interstate commerce to facilitate state and local governments’ enforcement of their other criminal laws more effectively.6 Congress also discovered it could use its enumerated powers to assist state and local government law enforcement by involving the Federal Bureau of Investigation and the Internal Revenue Service in the investigation of criminal activities in a state. The globalization of criminal networks has

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made Congress’ delegated power to regulate foreign commerce an important one that is invoked to assist subnational governments to enforce their criminal laws. All congressional acts aiding state law enforcement are important, as revealed by a listing of their subject matter: (1) adulterated or misbranded foods and drugs, (2) alcoholic beverages transportation, (3) alcoholic beverages and cigarette excise taxes, (4) animals, birds, fish, and plants, (5) bank robbery, (6) drunk driving, (7) firearms, (8) fraud, (9) gambling, (10) kidnapping, (11) morality, (12) narcotics, (13) protection of children, (14) sporting contests, (15) stalking of women, (16) stolen motor vehicles, and (17) stolen livestock and goods. The arrests of a significant number of individuals by state and local police for each type of crime are attributable to the assistance of federal officers. The continuing nationalization and globalization of criminal activities makes state and local law enforcement officers increasingly dependent upon the assistance of national law enforcement officers. Unfortunately, the War on Terrorism since September 11, 2001, has resulted in the reassignment of numerous Federal Bureau of Investigation agents, who had been assisting state and local government law enforcement officers, to antiterrorism duties.

Congressional Financial Assistance Chapter 4 reveals that Congress first financially assisted states in 1790 by assuming their respective Revolutionary War debts. The early grants to states were land grants and included the Morrill Act of 1862 facilitating the establishment of state colleges of agriculture and mechanical arts that in time became major state universities whose activities promote the economic development of the states.7 Subsequent conditional cash categorical and block grants-in-aid programs have been of greater importance in terms of facilitating implementation of state policies and result in a national-state-local partnership designed to attain national goals. Block grants, in particular, have demonstrated their ability to facilitate state and local government achievement of national goals at less cost compared to categorical grants for the same purposes. Congress provides indirect financial assistance to states in several forms. Exemption of state and local government bond interest income from the federal income tax, termed a tax-expenditure, lowers the cost of borrowing funds. Similarly, tax credits and deductions authorized by the internal revenue code enable state governments to increase their income tax rates and local governments to increase property tax rates to a degree without triggering a tax revolt. Other congressional financial facilitating actions include loans,

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guaranteed private loans to state and/or local governments that lower the cost of borrowing, insurance, and training programs for subnational governmental personnel. There is general agreement that categorical grants-in-aid and block grants-in-aid have proven to be beneficial to the states despite the criticism by certain state officers of a number of the attached conditions. Furthermore, Congress enacted statutes creating several national programs to assist states in facilitating enforcement of their criminal laws, including the act establishing a national motor vehicle title information system that provides instant and reliable access to information maintained by other states pertaining to the titling of motor vehicles.8 This act also established the national stolen auto parts information system containing the identification numbers of stolen motor vehicles and motor vehicle parts.

Facilitation of Interstate Compact Formation Chapter 5 notes that Congress plays a minor facilitating role in encouraging state legislatures to enact uniform state laws drafted by the National Conference of Commissioners on Uniform State Laws and other organizations, and interstate compacts that date to 1785. Experience reveals the full potential of compacts as an interstitial governance device between the national plane and the state plane has not been realized. Compacts are exceptionally flexible mechanisms extending the jurisdictional reach of each party state to solve problems beyond its respective boundaries, and several compacts include all states, the District of Columbia, and the ten Canadian provinces. A compact can be very innovative and involve a subject that previously was noted only with reference to a proposed constitutional amendment. Until 1921, compacts entered into by states under the U.S. Constitution, with one exception, were utilized to settle interstate boundary dispute. The first innovative interstate compact is the Port of New York Compact, which created a commission charged with responsibility for improving the marine port. Subsequently, compacts have involved subjects ranging from agriculture to water resources. An exceptionally innovative and unusual proposed compact is the 2006 interstate agreement to elect the president by national popular vote, which reveals a major national electoral change can be accomplished by a compact, thereby negating the need for a constitutional amendment to implement the same change.9 A compact either creates a commission or is administered by the concerned departments of member states. Any person or organization can draft a compact. Experience reveals that an invitation issued by states to the relevant federal department or agency, if any, to participate in the drafting of

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a compact, particularly one involving a national concern, is most desirable. Although negotiations between interested states often are time-consuming and are not always successful, numerous interstate compacts have been successful in achieving their stated goals and support state entrance into new compacts. A few interstate river compacts, however, have proved to be contentious and resulted in litigation, including invocation of the original jurisdiction of the U.S. Supreme Court.10 Congress occasionally grants its consent-in-advance to states to enter into interstate concordats, but has not actively encouraged states on a continuing basis to enact interstate compacts designed to facilitate the harmonization of state regulatory powers and thereby promote interstate commerce and economic development. Furthermore, the potential of compacts for facilitating enforcement of their criminal statutes is revealed by the experience of the Waterfront Compact for New York Harbor, granted congressional consent in 1953, whose commission quickly removed corruption and organized crime from the harbor docks without depriving New Jersey and New York of regulatory authority.11

State-Friendly Congressional Statutes Chapter 6 focuses upon congressional enactment of state-friendly preemption and innovative statutes facilitating the achievement of state goals. Enactment of 609 preemption statutes by June 1, 2009, has not converted states into political subdivisions of the general government. The U.S. Supreme Court in Alden v. Maine in 1999 observed that the U.S. Constitution reserves to states “a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status,” and added, “they are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.”12 Minimum standards preemption acts are state friendly as their purpose is to ensure that only state governments are responsible for regulating specified fields provided their standards meet or exceed national standards and are enforced. These acts are based upon a partnership principle with the concerned national agency monitoring state performance of the regulatory function and providing financial and technical assistance. The relatively few innovative state-friendly congressional statutes enacted to date give a hint of the potential for the enactment of other such statutes. A strong argument can be made for the inclusion of more opt-in and opt-out provisions in major preemption statutes regulating a broad field such as banking and finance. The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 is the first statute to contain both an opt-in

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and an opt-out provision allowing a state legislature a degree of discretion in adjusting the national act to the conditions in the state.13 In addition, Congress could insert more frequently in what otherwise would be a complete preemption act a savings clause authorizing states to establish a regulatory standard if there is no national standard in effect. Similarly, Congress could enact additional preemption statutes authorizing states to regulate provided their standards are consistent with or more stringent than the national standards. Many other innovative statutes could be developed that would facilitate state initiation of actions to solve regulatory problems. Congressional review on a periodic basis of the effectiveness of preemption statutes no doubt would reveal that their respective goals in many instances will become more readily obtainable by amending the statutes to allow states to play larger regulatory roles.

The Accountability-Responsibility Problem Federalism is an abstract organization for assigning powers to different planes of government and cannot automatically provide a precise boundary line or lines between the powers of the national government and the powers of state governments. Hence, the question of exclusive or concurrent jurisdiction is necessarily associated with a federal system. The authors of the Federalist Papers were keenly aware that conflict between national and state powers would be inevitable in a federal system and that a mechanism was needed to determine which law would prevail in the event of such conflict. Madison in The Federalist Number 37 commented on the arduous “task of marking the proper line of partition between the authority of the general and that of the State governments.”14 The solution of the framers of the U.S. Constitution was the supremacy of the laws clause to resolve any conflicts between state laws and congressional acts and treaties with foreign nations. This clause, however, is inadequate today for determining the respective powers and responsibilities of the planes of government. The framers of the U.S. Constitution left us a legacy, but it is inconceivable that they could have envisioned the currently kaleidoscopic system of federalism with its extreme complexity and interdependence of the three planes of government. If the theory of dual federalism was implemented fully in a nation, citizens readily could determine the plane of government responsible for failures to achieve desired goals or and/or incompetent performance of duties. This theory possessed considerable explanatory value for national-state relations from 1789 until the national economy and society became extremely complex in the late nineteenth century and the twentieth century. Intergovernmental

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relations are Daedalian today as the result of the actions described in this volume. The average citizen, in consequence, has little understanding of such relations. Democratic theory in a republic is premised upon the establishment of responsibility, to allow the electorate to hold public officers accountable for their failure to achieve mandated goals, to carry out their assigned responsibilities, or for commission of unethical acts. Uncertainty regarding governmental responsibility in a federal system cannot be eliminated completely when imperia exist within an imperium. Nevertheless, Congress can initiate action to clarify the responsibilities of the national and state planes of government. Since fluidity will continue to characterize national-state relations and adjustments in the assignments of responsibilities will be made, these changes should be reflected in the recommended code of restrictions (see below). The shift of a considerable amount of decision-making authority to the national capitol has diminished the ability of the average citizen to influence policymaking and resulted in powerful interest groups exercising considerable influence in the lawmaking process. The U.S. Supreme Court contributed to this problem by nullifying key provisions of state corrupt practices acts regulating campaign finance, thereby augmenting the political power of pressure groups promoting their special interests.15 Citizens have the greatest opportunity to play an important role in the governance system on the local government plane, since most public services are delivered by units on this plane and the relatively small geographic scale of most local governments facilitates citizen involvement. To the extent that preemption statutes, directly or indirectly through the states, limit the authority of general-purpose local governments, participatory democracy will suffer because citizens will have fewer opportunities to play significant roles in the governance process, in contrast to wealthy special interest groups. This fact supports the argument that Congress in considering bills affecting intergovernmental relations should follow to the extent possible the principle of subsidiarity, which holds the competent government closest to the people should be responsible for a function.

Recommendations Henry M. Hart Jr. commented in 1954 on national-state relations and pessimistically observed, “[T]he opportunity for long-range and systematic thinking lies with the courts and the legal profession with such help as political science can muster.”16 The detailed information on congressional actions facilitating actions by state governments presented in this volume leads to a series of prescriptions

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of actions that should be initiated by Congress, the president, state legislatures, and state governors to further perfect the economic union and the political union established by the U.S. Constitution. The information also can be employed to evaluate the validity of the two prevailing theories of U.S. federalism. Congress The national legislature should initiate a new, more facilitative approach to national-state relations. A review of preemption statutes restructuring the federal system reveals that Congress generally acted in a conceptual vacuum when it enacted most of them as ad hoc responses to nonharmonious state regulatory statutes and administrative regulations without consideration of the desirability of the various types of preemption in terms of their effects on the federal system. The result is a major transformation of the system unnecessarily affecting adversely state and/or local governments in many instances, and creating public officer and citizen confusion with respect to which plane of government is responsible for many regulatory functions. Former U.S. Representative Edward I. Koch, who later became mayor of New York City, commented on the failure of many members of Congress to appreciate the impact of preemption acts on state and local governments: As a member of Congress I voted for many of the laws . . . and did so with every confidence that we were enacting sensible permanent solutions to critical problems. It took a plunge into the Mayor’s job to drive home how misguided my congressional outlook had been. The bills I voted for in Washington came to the floor in a form that compelled approval. After all, who can vote against clean air and water, or better access and education for the handicapped, but as I look back it is hard to believe I could have been taken in by the simplicity of what the Congress was doing and by the flimsy empirical support—often no more than a carefully orchestrated hearing record or a single consultant’s report—offered to persuade the members that the proposed solution could work throughout the country.17 Congress should study carefully the broader federalism implications of a major preemption bill under consideration to ensure it will achieve its goals without unnecessarily removing significant powers from subnational governments. In particular, each regulatory act should be explicit with respect to whether it is preemptive. In 1967, Senator Howard H. Baker Jr. of Tennessee highlighted the importance of clarity in such statutes: “I respectfully

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suggest that we ought to give very close attention to the language that we adopt so that this question of preemption or nonpreemption or even personal legislative preemption is clearly spelled out, so that we do not hinder the efforts of local authorities to respond to local circumstances.”18 The Senator’s suggestion also would relieve courts of the burden of determining whether a statute without a preemption clause is preemptive. The evidence presented in chapters 2–6 suggests Congress should initiate sixteen actions to improve national-state relations. 1. Invigorate its intergovernmental relations subcommittees in view of the fact most major regulatory bills if enacted will have a significant impact on states and their political subdivisions. The subcommittees should be directed to examine each preemption bill under consideration to determine its cost effectiveness and ability to achieve national goals without unduly reducing the regulatory powers of the states. 2. Reactivate the U.S. Advisory Commission on Intergovernmental Relations by appropriating funds to ensure there is a permanent body with a skilled staff devoting its attention to intergovernmental relations and issuing reports with recommendations directed to Congress, the president, state governments, and local governments. 3. Convene a panel of experts to develop criteria providing guidance relative to whether a major preemption bill under consideration should be enacted into law. 4. Establish a joint committee on preemption charged with responsibility for periodically reviewing preemption statutes to determine their effectiveness and/or need for amendments. 5. Include a sunset provision in most major preemption acts to ensure they are reviewed on a periodic basis. The Internet Tax Freedom Act Amendments of 2007, for example, contains a November 1, 2014, sunset clause.19 6. Place heavier reliance upon minimum standards preemption statutes, as a national-state regulatory partnership generally is the most effective method for solving significant national and regional public problems. 7. Consult governors and leaders of state legislatures prior to enacting a major preemption statute. 8. Enact contingent preemption statutes, in lieu of preemptive ones when possible, to encourage states to harmonize their regulatory laws and administrative regulations in various fields under the threat that the failure to do so will result in the removal of their regulatory powers in these fields. The effectiveness of this type of statute is revealed by the Gramm-Leach-Bliley Financial Modernization Act of 1999, which threatened to create a national system of licensing insurance agents if twenty-six state legislatures by November 12, 2002, did not enact harmonious licensing statutes.20 Thirty-five states on September 12, 2002, were certified as having enacted such statutes.

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9. Encourage harmonization of state laws and regulations by including in each preemption statute a clause exempting from preemption each state that has enacted a uniform state law on the same subject developed by the national conference of commissioners on uniform state laws, an instrumentality of the states. Such a provision is contained in the Electronic Signatures in Global and National Commerce Act of 2000.21 Congress also could facilitate the development and enactment of additional uniform state laws by making grants-in-aid to the conference. 10. Enact innovative regulatory statutes containing provisions for a state legislature to opt in or opt out of specified provisions of statutes where feasible. The Riegle--Neal Interstate Banking and Branching Efficiency Act of 1994, for example, contains an opt-in section allowing a state legislature to permit interstate branching through de novo branches and an opt-out section authorizing a state legislature to enact a law prohibiting interstate branching within the state otherwise authorized by the act.22 11. Develop a code of restrictions for each partial preemption statute to provide guidance to federal regulatory departments and agencies, state governments, local governments, and citizens, and thereby explain more fully the scope of the preemption and reduce the number of lawsuits filed seeking clarification of such statutes. 12. Enact a code of savings clauses to facilitate national government officer, subnational government officer, and citizen understanding of the extent of regulatory power devolved by each savings clause. 13. End its general silence with respect to pressing problems inherent in river water apportionment and state taxation of interstate commerce. Alternatively, Congress could offer incentives to encourage states to draft and enact interstate compacts harmonizing these two most important regulatory areas. 14. Offer financial and other incentives to state legislatures to enact harmonious parallel regulatory statutes, including those drafted by the national conference of commissioners on uniform state laws, and to enter into interstate regulatory compacts. 15. Grant blanket consent-in-advance to state legislatures to enter into interstate compacts with the proviso that a copy of each compact must be transmitted to each house of Congress and the compact becomes effective if not disallowed within sixty days. To date, Congress has included such a proviso only in the Civil Defense and Disaster Compact Act of 1951.23 The consent-in-advance also should authorize party states to enter into supplemental agreements that will make the compact a more flexible mechanism by facilitating the achievement of the compact’s goals. Congress for the first time authorized supplemental agreements in granting consent in 1996 to the Emergency Management Assistance Compact.24

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16. Provide leadership by drafting and enacting new federal-interstate compacts and encourage state legislatures to enact the compacts. The Delaware River Basin Compact was innovative when enacted in 1961 and has been highly successful in achieving its goals. Only five other such federal-state partnership compacts exist and many regional and national problems could be solved most effectively by Congress and state legislatures enacting new compacts of this nature. The President As the national political leader, the president should devote more attention to intergovernmental relations in view of their great economic and political importance, and offer suggestions for improving the federal system by following the examples of President Theodore R. Roosevelt, who convened in 1908 a conference of governors that later became the National Governors Association, and President Herbert C. Hoover, who requested states in 1929 to create the National Committee for Uniform Traffic Laws and Ordinances, which improved traffic safety and the flow of commerce throughout the nation. The president in particular should follow the lead of President John F. Kennedy who issued Executive Order 10932 on July 20, 1961, encouraging states to enter into the Civil Defense and Disaster Compact, which received the consent of Congress in 1951.25 The Intergovernmental Relations Office in the executive office of the president should be a high profile office that, among other responsibilities, studies disharmonious state regulatory policies impeding the free flow of interstate commerce and develops recommendations the president can transmit to Congress and state legislatures for enactment of laws facilitating such commerce. A new president also may wish to follow the lead of President Ronald Reagan who, upon assuming office in 1981, issued Executive Order 12303 establishing the presidential advisory committee on federalism and directing it to advise him. The president’s annual State of the Union message and annual economic report to Congress each should contain a section on the regulation of interstate economic intercourse encouraging Congress to enact statutes facilitating such intercourse and state legislatures to enact interstate regulatory compacts and uniform state laws. In addition, the president should direct cabinet secretaries, where appropriate, to promote development of state regulations on a cooperative basis and to prepare a report on state implementation actions. There is a history of cabinet members taking the lead in solving interstate problems. In 1924, for example, the secretary of agriculture encouraged development of a uniform number and marking system for highways by appointing a joint

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board, composed of state highway engineers, to design such a system. The board recommended that the American Association of State Highway Officials should be responsible for implementing the system, and the association continues to be responsible for the system today. The U.S. Environmental Protection Agency (EPA) oversees implementation of three minimum standards preemption acts, including the delegation of regulatory primacy to states if they have submitted standards and enforcement procedures meeting minimum national standards and have qualified personnel and necessary equipment. EPA, in granting regulatory primacy and monitoring state performance, should encourage states in each region to engage in joint cooperative programs to solve environmental problems. Furthermore, the agency should develop additional comprehensive plans in cooperation with states similar to the Chesapeake Bay program launched in 1983 by the District of Columbia, Maryland, Pennsylvania, Virginia, and the EPA to restore and protect the bay, and the 1995 comprehensive plan, developed in cooperation with eight states, to restore and protect the aquatic health of the Great Lakes.26 State Legislatures The subject of interstate relations generally is a low priority one in a state legislature unless there is a disruptive controversy between states. No state legislature today has a major standing committee devoted to relations with sister states. New Jersey in 1935 established the first commission on interstate cooperation and forty-two states had created such commissions by 1940. The Council of State Governments and the commissions focused national attention on the mercantilist regulatory practices of states by sponsoring the first national conference on interstate trade barriers in 1939 and also drafted interstate regulatory compacts. State legislatures shifted attention away from interstate relations to national-state relations in the 1960s as the result of the great increase in the number and types of national conditional grants-in-aid and block grants. Although there currently are twenty-four state intergovernmental relations commissions, their focus is limited to state-local relations. No state legislature reviews on a periodic basis interstate compacts and interstate administrative agreements to determine their need or effectiveness. State commissions on interstate relations could exercise continuous oversight over compacts and agreements, draft regulatory and nonregulatory interstate compacts, encourage state regulatory administrators to enter into administrative agreements with their counterparts in other states to increase harmonious regulation, advise the governor and the state legislature, and inform Congress on the need for national assistance to solve multistate problems and offer comments on preemption bills.

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State Governors Governors historically played major roles in attempting to resolve national-state and interstate disputes and problems. Acting alone or through the National Governors Association, governors could expand their intergovernmental roles by advising Congress and the president on the desirability of enacting each significant preemption bill introduced in Congress that has strong congressional support. Increased staff devoted to intergovernmental relations would enable the governor to devote a section of his/her annual state of the state address to intergovernmental relations, including recommended solutions for major problems. Alternatively, the governor could send an annual special message to the legislature on the subject. In sum, the president, Congress, state legislatures, and governors should devote more attention to alternative means of achieving more harmonious regulation of interstate commerce with emphasis upon the principle of subsidiarity.

Federalism Theories Two theories—dual and cooperative—have been developed to explain the functioning of the United States federal system. The division of powers approach adopted by the drafters of the U.S. Constitution suggests that a dual federal system has been established, and the suggestion is reinforced by the Tenth Amendment reserving powers to the states and the people, and by Section 1 of the Fourteenth Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Edward S. Corwin in 1950 developed the following postulates defining dual federalism: 1. The national government is one of enumerated powers only; 2. Also the purposes which it may constitutionally promote are few; 3. Within their respective spheres the two centers of governance are “sovereign” and hence equal; 4. The relation of the two centers with each other is one of tension rather than collaboration.27 A fifth postulate could be added: One center does not employ coercive powers against the other center.

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This theory focuses upon the centralization and decentralization of powers by positing that the national government and the states each has a separate sphere of sovereign powers and the retention of sovereignty in certain areas by states is the philosophical underpinning of the federal system. There is no place in this theory for congressional devolution of powers, facilitation of state actions, and preemption of the regulatory powers of the states; interstate relations; and state-local relations in states with a constitution devolving powers upon general purpose local governments. The theory of cooperative federalism is traceable to James Madison who explained in 1799 there was no intent to establish a dual federal system as the national government “can not be maintained without the co-operation of the States.”28 Daniel J. Elazar conducted an extensive study of national and state records and concluded that a rigid dual system of federalism never existed in the United States and the hallmark of national-state relations since the early days of the republic has been cooperation.29 Several nineteenth-century examples of national-state cooperation cited by Elazar were of minor importance, but such cooperation became extensive and of major importance subsequent to the mid-twentieth century. The cooperative theory to date focuses on national-state and national-local relations in general and on federal financial assistance to subnational governments in particular, and runs counter to congressional removal of state regulatory powers and imposition of mandates and restraints. This theory, in common with the dual theory, does not explain congressional preemption, interstate relations, or state-local relations. Each theory was developed prior to 1965, when Congress extended the scope of its preemption powers to regulatory areas that had been the exclusive preserve of the states and enacted the first minimum standards preemption statute. Many post-1965 preemption statutes contain mandates and/or restraints and led to the charge by a number of subnational government officers of unfunded mandates and a reference by a few academics, including John Kincaid, to coercive federalism.30 Elazar wrote in 1990, “[T]he federal government, under the guise of cooperative federalism, changed its role from being supportive—from playing a backstopping role—to being coercive and even preemptive.”31 Our study of the important roles played by Congress in facilitating state actions raises the question of the explanatory adequacy of the two theories of U.S. federalism. The dual theory retains limited explanatory value as states retain a number of powers not subject to congressional preemption. The cooperative theory, however, has considerably more explanatory value relative to national-state and national-local relations, but needs to be expanded to include congressional statutes facilitating state enforcement of their respective criminal laws, devolving powers promoting state achievement of their

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respective goals, interstate relations, and state-local relations. There is no place in this theory for congressional preemption of the regulatory powers of state and local governments other than preemption acts requested by state officers. As noted, state-friendly preemption statutes remove formal regulatory powers from states, yet are of direct benefit to the states. What is needed is a general nonequilibrium theory of federalism incorporating a relatively large number of postulates relating to national-state, national-local, interstate, and state-local relations, including the following ones pertaining to national-state relations: 1. Congress possesses enumerated powers, supplemented by implied powers, and states possess irreducible residual powers. 2. Congress devolves some of its delegated powers to state legislatures, governors, and attorneys general. 3. Relations between the national government and individual states are asymmetrical. 4. Congress authorizes conditional grants-in-aid, national technical assistance, and tax credits to obtain the cooperation of state governments in implementing national policies. 5. Congress enacts statutes facilitating states’ enforcement of their respective criminal laws. 6. Regulatory tensions exist between states and Congress that encourage state legislatures to enact uniform laws and interstate compacts in numerous areas. 7. Congress enacts preemption statutes removing completely or partially state regulatory powers in various fields. 8. Congress enacts minimum standards preemption statutes to encourage states to assume regulatory primacy and employ their regulatory powers more fully. 9. Congress imposes mandates and restraints on subnational governments and on occasion responds affirmatively to state requests for relief from burdensome mandates and restraints. 10. States employ the political process in efforts to defeat congressional preemption bills, except requested ones, and to encourage Congress to enact state-friendly statutes and to reverse U.S. court rulings unfavorable to states.

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It is apparent the theory of cooperative federalism can be expanded to encompass (1) congressional devolution of powers to states and facilitation of state action, (2) interstate comity, and (3) state-local relations in states with a constitution devolving powers to general purpose local governments. Phases of Intergovernmental Relations Deil S. Wright took a different approach to explaining the operation of the federal system by identifying seven phases of intergovernmental relations in the period 1789 to the 1990s and emphasizing the different perspectives of intergovernmental actors (public officials and citizens) and public policies. The phases, with their respective approximate dates, are summarized briefly below.32 Wright prefers the term intergovernmental relations (IGR), which originated in the 1930s, to federalism for four reasons: (1) The dictionary definition of the latter term is limited to a national-state division of powers, (2) federalism “has produced a legacy of legalism,” (3) the term suggests “a hierarchical set of power or authority relationships,” and (4) writings on federalism have not emphasized policy concerns.33 The first phase (the 1930s and before) involved conflicts between the national government and the states and similar conflicts between states and their respective political subdivisions as jurisdictional boundaries were drawn. The second phase, labeled cooperative (1930s-1950s), focused on grants-in-aid and shared functions. The third phase is termed concentrated (1940s-1960s), because intergovernmental relations became more specific as new major federal grant-in-aid programs were launched with an emphasis on capital projects. The period also was one when administrative rules and regulations grew in importance. The fourth phase, creative (1950s-1960s), featured the proliferation of new grant programs, a sharp increase in project grants, program planning, attached citizen participation requirements, metropolitan planning, and antipoverty programs. The fifth phase, competitive (1960s-1970s), was a period when block grant and revenue sharing programs were launched, the term picket-fence federalism made its appearance, and tension grew between general policy makers and program specialists. The sixth phase, calculated (1970s-1980s), was a decade of fiscal problems including the near bankruptcy of New York City and the creation of a state control board to supervise the city’s financial transactions. Wright uses the term calculated to identify strategic behavior by state and local intergovernmental officials who calculated the benefits and costs of federal and state grants-in-aid, and the efforts they made to change the formulas by which federal grants were distributed. The final phase is labeled contractive (1980s-1990s) because

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federal grants-in-aid to state and local governments were shrinking and local government autonomy was eroding. Starting with the second phase, Wright highlights federal government initiatives in general and financial assistance to state and local governments in particular. The phases are helpful in promoting an understanding of the major changes in national-state, national-local, and state-local intergovernmental relations over the decades, and the roles played by public officials and citizens. The phases, however, do not specifically include congressional devolution of powers to states or congressional statutes, other than grant ones, facilitating state actions. Furthermore, interstate relations are noted only in passing. A Kaleidoscopic View The nuances of complex national-state relations can be understood more satisfactorily by viewing the federal system through a kaleidoscope whose revolving reveals a continuous metamorphosis of the political landscape with each piece of colored glass reflecting (1) the changing numbers and types of preemption statutes, with some containing mandates, restraints, and opt-in and opt-out provisions, (2) intertwining of national and state powers (3) block grants-in-aid, (4) conditional grants-in-aid, (5) waivers of conditions-of-aid, (6) crosscutting sanctions, (7) crossover sanctions, (8) tax credits, (9) tax sanctions, (10) administrative cooperation, (11) occasional preemption relief, (12) congressional devolution of some of its legislative powers to state legislatures, limited executive and administrative powers to governors affecting the state constitutional gubernatorial-legislative balance of powers, and limited enforcement powers to attorneys general, and (13) congressional statutes facilitating state actions. The kaleidoscopic view reveals the interlocking of machinery of the national, state, and local governments and the dependence of Congress upon state and local governments for the implementation of many of its policies. The relative emphasis Congress places on its four national-state relations roles—cooperator, initiator, inhibitor, and facilitator—at any one time alters the view in the kaleidoscope. The national-state relations kaleidoscope also can be tailored to a particular state since relations between the national government and individual states are asymmetrical. It is apparent, however, that the U.S. federal system is considerably more complex than the national-state relations revealed by the kaleidoscope. A general theory of federalism must include national-local government relations; competitive, cooperative, and conflictive postulates relating to relations between sister states; similar postulates relating to state-local relations

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in states, such as Illinois and New York, with a constitution devolving powers upon general purpose local governments; and the roles of the U.S. Supreme Court in (1) deciding whether a congressional statute is preemptive, (2) determining the scope of a preemption statute, and (3) adjudicating interstate disputes.34 The economic union would be made more perfect if Congress, the political branch, accepted the U.S. Supreme Court’s repeated recommendations for the enactment of statutes apportioning the waters of major rivers and regulation of state taxation of interstate commerce.35

Concluding Remarks In sum, the U.S. Constitution has proven to be an exceptionally flexible fundamental law permitting the general government, in collaboration with subnational governments, to address the most serious domestic and international problems in a rapidly changing world that offers new challenges and threats. The evidence presented in this volume fills a lacuna in the literature and demonstrates that congressional devolution of powers to states and facilitation of state actions improves the functioning of the federal system by encouraging states to exercise their reserved powers more effectively. Significantly, these congressional actions, in contrast to preemption statutes, do not reduce the regulatory powers of states. However, congressional enactment of the many types of devolution and preemption statutes has made the system extremely complex, with the result citizens often are unaware of which plane of government is responsible for a given function. The recommendations addressed to the Congress, the president, state legislatures, and state governors are designed to improve the functioning of the federal system by ensuring states will continue to play important roles in solving public problems. Implementation of all of the recommendations is most improbable, but hopefully several recommendations will be adopted in the near future.

Notes Chapter 1. The Federal System 1. Daniel J. Elazar, The American Partnership: Intergovernmental Cooperation in the Nineteenth Century (Chicago: University of Chicago Press, 1962). 2. Jane P. Clark, “Joint Activity between Federal and State Officials,” Political Science Quarterly 51 (June 1936): 241. 3. Ibid., 248–54. 4. V. O. Key Jr., “State Legislation Facilitative of Federal Action,” The Annals of the American Academy of Political and Social Science 207 (January 1940): 12. 5. Ibid., 13. 6. Rendition Act of 1793, 1 Stat. 302, 18 U.S.C. §3182. See also John J. Murphy, “Revising Domestic Extradition Law,” University of Pennsylvania Law Review 131 (April 1983): 1063–119. 7. Thomas A. Bailey, The American Pageant: A History of the Republic, 3rd ed. (Boston: D. C. Heath, 1967), 136. 8. Ibid., 137. 9. The Federalist Papers (New York: New American Library, 1961). 10. Ibid., 246. 11. Ibid., 292, 296. 12. Ibid., 204. 13. Ralph Ketcham, ed., The Antifederalist Papers and the Constitutional Convention Debates (New York: New American Library, 1986). 14. Ibid., 272. 15. Alan V. Briceland, “Virginia’s Ratification of the U.S. Constitution,” Newsletter 61 (Institute of Government, University of Virginia), October 1984, 2. 16. Joseph F. Zimmerman, Congressional Preemption: Regulatory Federalism (Albany: State University of New York Press, 2005). 17. Gaillard Hunt, ed., The Writings of James Madison, vol. vi (New York: G. P. Putnam’s Sons, 1901), 333. 18. McCulloch v. Maryland, 4 U.S. 316 at 421, 4 Wheaton 316 at 421 (1819). 19. Consult Zimmerman, Congressional Preemption. 20. See Joseph F. Zimmerman, The Silence of Congress: State Taxation of Interstate Commerce (Albany: State University of New York Press, 2007). See also Brown v. Houston, 114 U.S. 633 at 634, 5 S.Ct.1091 at 1097 (1885). 21. 1 Stat. 54 (1789). 173

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22. North American Free Trade Implementation Act of 1993, 107 Stat. 2057, 19 U.S.C. §3301. 23. Air Quality Act of 1967, 81 Stat. 465, 42 U.S.C. §1857. 24. Commercial Motor Vehicle Act of 1986, 100 Stat. 3207, 49 U.S.C. §2701. 25. Clean Air Act Amendments of 1990, 104 Stat. 2399, 42 U.S.C. §§7407, 7511c. 26. See, for example, the Internet Tax Freedom Amendments Act of 2007, 121 Stat. 1024, 47 U.S.C. §609. 27. Zimmerman, Congressional Preemption. 28. Do-Not-Call Implementation Act of 2003, 117 Stat. 557, 15 U.S.C. §6101. 29. Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, 119 Stat. 1895, 49 U.S.C. §5103a(g)(s). 30. Copyright Act of 1790, 1 Stat. 124 and Patent Act of 1790, 1 Stat. 109. See also Joseph F. Zimmerman and Sharon Lawrence, Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1992). 31. Joseph F. Zimmerman, “Congressional Preemption during the George W. Bush Administration,” Publius: The Journal of Federalism 37 (Summer 2007): 432–52; Internet Nondiscrimination Act of 2001, 115 Stat. 703, 47 U.S.C. §609; Internet Tax Freedom Act of 2004, 118 Stat. 2615, 47 U.S.C. §609, and Internet Tax Freedom Act Amendments of 2007, 121 Stat. 1024, 47 U.S.C. §609. 32. Unfunded Mandates Reform Act of 1995, 109 Stat. 48, 2 U.S.C. §1501. 33. Safe Drinking Water Act Amendments of 1996, 110 Stat. 1613, 42 U.S.C. §300f. 34. Ocean Dumping Ban Act of 1988, 102 Stat. 4138, 33 U.S.C. §1401A. 35. New York Laws of 1921, chap. 649 and New York General Business Law, §352.

Chapter 2. Devolution of Power 1. For additional details, consult Colin Pickington, Devolution in Britain Today (Manchester: University of Manchester Press, 2002) and Vernon Bogdanor, Devolution in the United Kingdom, new ed. (Oxford: Oxford University Press, 2004). 2. For an explanation of a proposed interstate agreement based upon this section, see John R. Koza, Barry Fadem, Mark Grueskin, Michael S. Mandell, Robert Richie, and Joseph F. Zimmerman, Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote (Los Altos, CA: National Popular Vote Press, 2006). 3. Virginia v. Tennessee, 148 U.S. 503 at 520, 13 S.Ct. 728 at 735 (1893). 4. Joseph F. Zimmerman, Interstate Cooperation: Compacts and Administrative Agreements (Westport, CT: Praeger, 2002). 5. William J. Brennan Jr., “The Constitution of the United States: Contemporary Ratification.” Presented at a text and teaching symposium, Georgetown University, Washington, DC: October 12, 1985, 4. 6. 1 Stat. 54 (1789).

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7. Shipping Statute of 1983, 97 Stat. 553, 46 U.S.C. §8501. See also Public Law 109-304 of 2006 completing codification of title 46 of the U.S. Code, “Shipping,” 120 Stat. 1485, 46 U.S.C. §8501. 8. Ibid., 46 U.S.C.§8502(c). 9. Ibid., 97 Stat. 559, 46 U.S.C. §9306. 10. Port and Tanker Safety Act of 1978, 92 Stat. 1475–476, 33 U.S.C. §1226. 11. Ibid., 92 Stat. 1475, 33 U.S.C. §1225. 12. Vessel Safety Standards Act of 1983, 97 Stat. 553, 46 U.S.C. §4305. 13. Marine Sanctuaries Act Amendments of 1984, 98 Stat. 2296, 16 U.S.C. §1431. 14. Coast Guard Authorization Act of 1984, 98 Stat. 2862, 46 U.S.C. §2302(c). 15. “Adoption of State Blood Alcohol Concentration Levels,” 33 CFR §95.025 (1987). For an explanation of the standards, see the Federal Register, December 4, 1987, 47526–32. 16. Paul v. Virginia, 75 U.S. 168, 8 Wallace 168 (1868). 17. United States v. South-Eastern Underwriters Association, 322 U.S. 533, 64 S.Ct. 533 (1944). 18. McCarran-Ferguson Act of 1945, 59 Stat. 33, 15 U.S.C. §1011. 19. Liability Risk Retention Act of 1986, 100 Stat. 3170, 15 U.S.C. §3901. 20. Western & Southern Life Insurance Company v. State Board of Equalization, 451 U.S. 648 at 655–56, 101 S.Ct. 2070 at 2076–077 (1981). 21. Constitution of California, Art. XIII, §14 4/5(b) (3). 22. Metropolitan Life Insurance Company v. Ward, 470 U.S. 869, 105 S.Ct. 1676 (1985). 23. Barnett Bank v. Florida Insurance Commissioner, 517 U.S. 25, 116 S.Ct. 1103 (1996). 24. Act of September 7, 1916, 39 Stat. 753, 12 U.S.C. §92. 25. Kentucky Revised Statutes Annotated, §304, and Employee Retirement Income Security Act of 1974, 88 Stat. 829, 29 U.S.C. §1001. 26. Kentucky Association of Health Plans Incorporated et al. v. Miller, 538 U.S. 329, 123 S.Ct. 471 (2003). 27. Ibid., 538 U.S. 329 at 341, 123 S.Ct. 1471 at 1479. 28. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1353, 1422, 15 U.S.C.§§6701(d)(2)(A), 6751. 29. Ibid., 113 Stat. 1414, 12 U.S.C. §1831x(g)(2)((B)(iii). 30. Air Transportation Safety and System Stabilization Act of 2001, 115 Stat. 240–41, 49 U.S.C. §40101. 31. Terrorism Risk Insurance Act of 2002, 116 Stat. 2322, 15 U.S.C. §6701. 32. Ibid., 116 Stat. 2334, 15 U.S.C. §6701(b). 33. Terrorism Risk Insurance Act of 2005, 119 Stat. 2660, 15 U.S.C. §6701; Terrorism Risk Insurance Program Reauthorization Act of 2007, 121 Stat. 1839, 15 U.S.C.§6701. 34. “Members Certify GLBA Reciprocity Requirement Met,” a news release issued by the National Association of Insurance Commissioners, September 11, 2002.

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Notes to Chapter 2

35. Financial Regulation Standards and Accreditation Program (Kansas City: National Association of Insurance Commissioners, 2000). 36. Richard J. Hillman, Efforts to Streamline Key Licensing and Approval Processes Face Challenges (Washington, DC: U.S. General Accounting Office, 2002). 37. Joseph F. Zimmerman, “Achieving State Insurance Uniformity: The Interstate Compact,” a paper presented at an Interstate Compact Symposium: Strengthening State Regulation of Insurance, San Diego, CA, December 7, 2002. 38. Cable Communications Policy Act of 1984, 98 Stat. 2792, 47 U.S.C. §546. 39. Ibid., 98 Stat. 2792, 47 U.S.C. §546. 40. Ibid., 98 Stat. 2800, 47 U.S.C. §555. 41. State and Local Enforcement of Federal Communications Commission Regulations on Use of Citizens Band Radio Equipment Act of 2000, 114 Stat. 2438, 47 U.S.C. §302(a)(f)(1). 42. National Firearms Act of 1934, 48 Stat. 1236. 43. Sonzinsky v. United States, 300 U.S.506 at 513-14, 57 S.Ct. 554 at 556 (1937). 44. Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 1012013, 18 U.S.C. §923(d)(1)(F). 45. Interstate Horseracing Act of 1978, 92 Stat. 1813, 15 U.S.C. §3004. 46. Kentucky Division, Horsemen’s Benevolent & Protective Association, Incorporated v. Turfway Park Racing Association, 832 F. Supp. 1097 (E.D. KY, 1993). 47. Kentucky Division, Horsemen’s Benevolent & Protective Association, Incorporated v. Turfway Park Racing Association, 20 F.3d 1406 at 1416–417 (6th Cir. 1994). 48. Johnson Act of 1951, 64 Stat. 1134 (1951), 15 U.S.C. §1172. 49. Floral Garden Banks National Marine Sanctuary Act of 1992, 106 Stat. 61, 15 U.S.C. §1172 (c)(1–2). 50. Ibid., 106 Stat. 61–62, 15 U.S.C. §1172(a)(1)(b)(2). 51. Revenue Act of 1951, 65 Stat. 452, 26 U.S.C. §3285. 52. United States v. Kahriger, 345 U.S. 22 at 28, 73 S.Ct. 510 at 513, 515. 53. Marchetti v. United States, 390 U.S. 39 at 49, 88 S.Ct. 697 at 703 (1968). 54. Cabazon Band of Mission Indians v. California, 480 U.S. 202, 107 S.Ct. 1083 (1987). 55. Indian Gaming Regulatory Act of 1988, 102 Stat. 2467, 25 U.S.C. §2710. 56. Seminole Tribe of Florida v. Florida, 517 U.S. 44 at 76, 116 S.Ct. 1114 at 1133 (1996). 57. Professional and Amateur Sports Protection Act of 1992, 106 Stat. 4228, 28 U.S.C. §3702. 58. Ibid., 106 Stat. 4228, 28 U.S.C. §3704. 59. Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 2126, 18 U.S.C. §1301. 60. Coast Guard Authorization Act of 1996, 110 Stat. 3901, 15 U.S.C. §§1175(b)(1)(C), 1175(b)(1)(c)(A). See also the Johnson Act of 1951, 64 Stat. 1134, 15 U.S.C. §1172. 61. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d.

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62. Consult Joseph F. Zimmerman, Congressional Preemption: Regulatory Federalism (Albany: State University of New York Press, 2005), 108–15, 151, 187–88,190. 63. Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. §1151; Air Quality Act of 1967, 81 Stat. 485, 42 U.S.C. §1857; Safe Drinking Water Act of 1974, 88 Stat. 1665, 42 U.S.C. §201; Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445, 30 U.S.C. §1201; Junk Fax Prevention Act of 2005, 119 Stat. 358, 49 U.S.C. §609; and Secure and Fair Enforcement for Mortgage Licensing Act of 2008, 122 Stat. 2814, 12 U.S.C. §5104(b). 64. Energy Policy and Conservation Act Amendments of 2000, 114 Stat. 2037, 16 U.S.C. §823c. 65. National Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 719, 15 U.S.C. §1392(d). 66. Federal Railroad Safety Act of 1970, 84 Stat. 971, 45 U.S.C. §431. 67. Occupational Safety and Health Act of 1970, 84 Stat. 1608, 29 U.S.C. §607. 68. Toxic Substances Control Act of 1978, 90 Stat. 2038, 15 U.S.C. §2617. 69. Ibid., 90 Stat. 2039, 15 U.S.C. §2617. 70. Natural Gas Policy Act of 1978, 92 Stat. 3409, 15 U.S.C. §3431. 71. Port and Tanker Safety Act of 1978, 92 Stat. 1475, 33 U.S.C. §1225. 72. Oil Pollution Act of 1990, 104 Stat 506, 33 U.S.C. §2718. 73. Telephone Consumer Protection Act of 1991, 105 Stat. 2400, 47 U.S.C. §227(e). 74. Family and Medical Leave Act of 1993, 107 Stat. 26, 29 U.S.C. §2651. 75. Armored Car Industry Reciprocity Act of 1993, 107 Stat. 276, 15 U.S.C. §5901. 76. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1442, 15 U.S.C. §6807. 77. Do-Not-Call Implementation Act of 2003, 117 Stat. 557, 15 U.S.C. §6101. 78. Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, 119 Stat. 1895, 49 U.S.C. §5103a(g)(2). 79. Patient Safety and Quality Improvement Act of 2005, 119 Stat. 427, 42 U.S.C. §299b-22. 80. Safe Accountable, Flexible, Efficient Transportation Equity Act: A Legacy of Users of 2005, 119 Stat. 1935, 23 U.S.C. §106(a). 81. Financial Institutions, Reform, Recovery, and Enforcement Act of 1989, 103 Stat. 183, 12 U.S.C. §1811. 82. 1 Stat. 474 (1796). 83. 1 Stat. 619 (1799). 84. 20 Stat. 37 (1878). 85. Louisiana v. Texas et al., 176 U.S.1 at 22–23, 20 S.Ct. 251 at 258–59 (1900). 86. Ibid., 176 U.S. 1 at 25, 20 S.Ct. 251 at 259. 87. Plant Quarantine Act of 1912, 37 Stat. 315, 7 U.S.C. §151. 88. 62 Stat. 729, 18 U.S.C. §659. 89. Ibid.

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Notes to Chapter 2

90. Organized Crime Control Act of 1970, 84 Stat. 959, 18 U.S.C. §848. 91. Corrupt Practices Act of 1911, 27 Stat. 25 (1911). 92. Gun Control Act of 1968, 82 Stat. 1226, 18 U.S.C. §921. 93. Drug Abuse Control Amendment of 1965, 79 Stat. 235, 21 U.S.C. §321. 94. Fastener Quality Act of 1990, 104 Stat. 2952, 15 U.S.C. §5410. 95. Civil Rights Act of 1964, 78 Stat. 268, 2 U.S.C. §206. 96. 78 Stat. 203, 18 U.S.C. §224(a-b). 97. Truth in Lending Act of 1968, 82 Stat. 151, 15 U.S.C. §58. 98. Ibid., 82 Stat. 162, 18 U.S.C. §896. 99. Fair Credit Billing Act of 1974, 88 Stat. 1516, 15 U.S.C. §16661(a). 100. Telephone Operator Consumer Services Improvement Act of 1990,104 Stat. 989, 47 U.S.C. §226(2). 101. Truth in Savings Act of 1991, 105 Stat. 2342, 12 U.S.C. §4312. 102. Omnibus Transportation Employee Testing Act of 1991, 105 Stat. 960, 49 U.S.C. Appendix §2717(e). 103. Civil Space Employee Testing Act of 1991, 105 Stat. 1618, 42 U.S.C. §2473c. 104. Telephone Disclosure and Dispute Resolution Act of 1992, 106 Stat. 4185–186, 47 U.S.C. §228(g)(1–4). 105. Credit Repair Organizations Act of 1996, 110 Stat. 3009-462, 15 U.S.C. §1679. 106. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat 1423, 15 U.S.C. §6751(f). 107. Occupational Safety and Health Act of 1970, 84 Stat. 1608, 29 U.S.C. §667. 108. Federal Environmental Pesticide Control Act of 1972, 86 Stat. 996–97, 7 U.S.C. §§136u-136v. 109. Federal Insecticide, Fungicide, and Rodenticide Act of 1947, 61 Stat. 163, 7 U.S.C. §136. 110. Newborns’ and Mothers’ Health Protection Act of 1996, 110 Stat. 2937, 29 U.S.C. §1185. 111. Electronic Signatures in Global and National Commerce Act of 2000, 114 Stat. 467, 15 U.S.C. §7002. 112. Ibid. 113. Professional and Amateur Sports Protection Act of 1992, 106 Stat. 4228, 28 U.S.C. §3704. 114. Commodity Futures Modernization Act of 2000, 114 Stat. 2763A-436, 15 U.S.C. §78bb(a)(2). 115. Help America Vote Act of 2002, 116 Stat. 1728, 42 U.S.C. §1973gg-6(b)(2). 116. Real Interstate Driver Equity Act of 2002, 116 Stat. 2342, 49 U.S.C. §14501(d)(3). 117. Captive Wildlife Safety Act of 2003, 117 Stat. 2872, 16 U.S.C. §3372((2)(B). 118. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 117 Stat. 2716, 15 U.S.C. §7707.

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119. Consolidated Appropriations Act for Fiscal Year 2004, 118 Stat. 418, 42 U.S.C. §7547(b-c). 120. Consumer Credit Protection Act of 1968, 82 Stat. 162, 18 U.S.C. §683. 121. Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, 104 Stat. 4771, 16 U.S.C. §4725. 122. 64 Stat. 1134 (1951), 15 U.S.C. §1172. 123. Nilva v. United States, 348 U.S. 825, 75 S.Ct. 40 (1954). 124. Department of Transportation Appropriations Act of 1991, 104 Stat. 2185, 23 U.S.C. §105. 125. Department of Transportation and Related Agencies Appropriation Act of 1992,105 Stat. 944, 23 U.S.C. §159. 126. Transportation Equity Act of the 21st Century of 1998, 112 Stat. 126, 23 U.S.C. §159. 127. Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, 108 Stat. 2338, 12 U.S.C. §1811. 128. Ibid., 108 Stat. 2352, 12 U.S.C. §215. 129. Ibid., 108 Stat. 2343, 12 U.S.C. §1831u. 130. Philip Strahan, “The Real Effects of U.S. Banking Deregulation,” Federal Reserve Bank of St. Louis Review 85, July/August 2003, 113. 131. Ibid., 126. 132. Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. §1973. 133. Voting Rights Act Amendments of 1975, 89 Stat. 438, 42 U.S.C. §§1973a, 1973d, 1973l. 134. Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. §1973c. See also Joseph F. Zimmerman, “Election Systems and Representative Democracy: Reflections on the Voting Rights Act of 1965,” National Civic Review 84 (Fall/Winter 1995): 288–309. 135. Transportation Safety Act of 1974, 88 Stat. 2156, 49 U.S.C. §1801. See also 49 CFR 170–79. 136. Department of Transportation, “Hazardous Materials Inconsistency Ruling IR-7 through IR-15, November 27, 1984,” 46633. 137. Ibid., 46646. 138. Coastal Zone Management Act of 1972, 86 Stat. 1282, 16 U.S.C. §1454. 139. Ibid., 86 Stat. 1286, 16 U.S.C. §1456(d). 140. Coast Guard Authorization Act of 1998, 112 Stat. 1450, 15 U.S.C. §1451. 141. Federal Environmental Pesticide Control Act of 1972, 86 Stat. 983, 7 U.S.C. §136b(2). Consult also the Emergency Energy Conservation Act of 1979, 93 Stat. 759, 42 U.S.C. §8512. 142. Clean Air Act Amendments of 1977, 91 Stat. 722, 42 U.S.C. §7424. 143. Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 841, 33 U.S.C. §1151. 144. Emergency Highway Energy Conservation Act of 1974, 88 Stat. 1046, 23 U.S.C. §154. See also 23 CFR. 658.6. 145. Surface Transportation and Relocation Assistance Act of 1987, 101 Stat. 135, 23 U.S.C. §101 note. See also R. W. Apple Jr., “Senate Rejects Reagan Plan

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and Vote 67–33 to Override His Veto of Highway Funds,” The New York Times, April 3, 1987, 1, A25. 146. Safe Drinking Water Act of 1974, 88 Stat. 1676, 42 U.S.C. §300h. 147. Florida Department of Health and Rehabilitative Services v. Califano, 490 F. Supp. 274, 585 F.2d 150 (5th Cir.), cert. denied, 441 U.S. 931, 99 S.Ct. 2051 (1979). 148. Federal Metal and Nonmetallic Mine Safety Act of 1966, 80 Stat. 783, 42 U.S. C. §2011. This act has been replaced by the Federal Mine Safety and Health Act of 1977, 91 Stat. 1290, 30 U.S.C. §801. 149. Wholesome Meat Act of 1967, 81 Stat. 596, 21 U.S.C. §71, and Poultry Products Inspection Act of 1968, 82 Stat. 797, 21 U.S.C. §451. 150. National Health Planning and Resources Development Act of 1974, 88 Stat. 2242, 42 U.S.C. §300m. 151. Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 840, 842, 33 U.S.C. §1151. 152. Clean Air Act Amendments of 1977, 91 Stat. 749, 42 U.S.C. §7504. Consult also the Federal Environmental Pesticide Control Act of 1972, 86 Stat. 983, 7 U.S.C. §136b(2). 153. Surface Transportation Assistance Act of 1978, 92 Stat. 2724, 23 U.S.C. §134. 154. National Health Planning and Resources Development Act of 1974, 88 Stat. 2247, 42 U.S.C. §300m-3. 155. Highway Safety Act of 1966, 80 Stat. 731, 23 U.S.C. §402(b)(1). 156. “State of New York Executive Order No. 75,” Public Papers of Nelson A. Rockefeller: Fifty-Third Governor of the State of New York, 1973 (Albany: State of New York, n.d.), 811–12. 157. “Executive Order 12140 of May 29, 1979,” Federal Register, May 3, 1979, 31159. This delegation of authority is based upon the power vested in the president by the Emergency Petroleum Allocation Act of 1973, 87 Stat. 627, 15 U.S.C. §751] and his inherent powers. 158. Nuclear Waste Policy Act of 1982, 96 Stat. 2217, 42 U.S.C. §10125. 159. Yucca Mountain, Nevada, High Level Radioactive Waste Repository Act of 2002, 116 Stat. 735, 42 U.S.C. §10125. 160. Tandem Truck Safety Act of 1984, 98 Stat. 2384, 42 U.S.C. §2312. 161. Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), and Fri v. Sierra Club, 412 U.S.541, 93 S.Ct. 2770 (1973). 162. Federal Register, December 5, 1977, 61543. Consult also New York State Air Quality Implementation Plan: The Moynihan/Holtzman Amendment Submission: Transit Improvements in the New York City Metropolitan Area (Albany: New York State Department of Environmental Conservation and State Department of Transportation, 1979). 163. Clean Air Act Amendments of 1977, 91 Stat. 731, 42 U.S.C. §7470. 164. Ibid., 91 Stat. 734, 42 U.S.C. §7474. 165. Clean Air Act Amendments of 1990, 104 Stat. 2400, 42 U.S.C. §7407(d)(1)(B)(iii). 166. Ibid., 104 Stat. 2403, 42 U.S.C. §7407(d).

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167. Clean Air Act Amendments of 1977, 91 Stat. 733, 42 U.S.C. §7473. 168. Ibid., 91 Stat. 737, 42 U.S.C. §7475. 169. Ibid., 91 Stat. 695, 42 U.S.C. §7410. 170. Federal Register, December 5, 1977, 61543. Consult also the New York State Air Quality Implementation Plan. 171. Clean Air Act Amendments of 1977, 91 Stat. 723, 42 U.S.C. §7425. 172. Clean Air Act Amendments of 1990, 104 Stat. 2419, 42 U.S.C. §7506a. 173. Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, 120 Stat. 3596, 16 U.S.C. §1861(b)(1)(A(1). President George W. Bush signed the act on January 12, 2007. 174. John Warner National Defense Authorization Act for Fiscal Year 2007, 120 Stat. 2196, 32 U.S.C. §328. 175. Army Specialist Joseph P. Micks Federal Flag Code Amendment Act of 2007, 121 Stat. 233, 4 U.S.C. §1. 176. Federal Environmental Pesticide Control Act of 1972, 86 Stat. 996-97, 7 U.S.C. §§136u-1336v. 177. Consumer Product Safety Improvement Act of 1990, 104 Stat. 3122, 15 U.S.C. §§1194(a).1264. 178. Oil Pollution Act of 1990, 104 Stat. 506, 33 U.S.C. §2719. 179. Nutrition Labeling and Education Act of 1920, 41 Stat. 2362, 21 U.S.C. §337(b)(1). 180. Telephone Consumer Protection Act of 1991, 105 Stat. 2400, 47 U.S.C. §227(f). 181. Telephone Disclosure and Disputes Resolution Act of 1992, 106 Stat. 4190, 15 U.S.C. §5712. 182. Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994, 108 Stat. 1548, 15 U.S.C. §6103. 183. Capital Markets Efficiency Act of 1996, 110 Stat. 3419, 15 U.S.C. §77r(c). 184. Consumer Credit Report Reform Act of 1996, 110 Stat. 3009-451 to 3009-453, 15 U.S.C. §1681s(2)(b-c). 185. Omnibus Consolidated Appropriations Act for Fiscal Year 1997, 110 Stat. 3009-451, 15 U.S.C. §1681s(e)(1). 186. Children’s Online Privacy Protection Act of 1998, 112 Stat. 2681-733, 15 U.S.C. §6504. 187. Twenty-First Amendment Enforcement Act of 2000, 114 Stat. 1546, 27 U.S.C. §122a(b)(1–2). 188. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 117 Stat. 2712, 15 U.S.C. §7706. 189. Junk Fax Prevention Act of 2005, 119 Stat. 359, 49 U.S.C. §609. 190. Atomic Energy Act of 1946, 60 Stat. 755, 42 U.S.C. §2011; Atomic Energy Act of 1959, 73 Stat. 688, 42 U.S.C. §2021. 191. United States Grain Standards Act of 1968, 82 Stat. 769, 7 U.S.C. §71. 192. Federal Railroad Safety Act of 1970, 84 Stat. 971, 45 U.S.C. §431. 193. Hazardous and Solid Waste Amendments of 1984, 98 Stat. 3256, 42 U.S.C. §§629, 6928, 6901–991; Hazardous Materials Transportation Act Amendments of 1976, 90 Stat. 2068, 49 U.S.C. Appendix §1805c.

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194. Age Discrimination in Employment Amendments of 1986, 100 Stat. 3342, 29 U.S.C. §623. 195. Oil Pollution Act of 1990, 104 Stat. 506, 33 U.S.C. §2719. 196. Anti Car Theft Act of 1992, 106 Stat. 3384, 18 U.S.C. §2119. 197. Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1276, 8 U.S.C. §1252c. 198. Coast Guard and Maritime Transportation Act of 2004, 118 Stat. 1078, 46 U.S.C. §70119(a). 199. Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, 120 Stat. 3596, 16 U.S.C. §1861(b)(1)(A)(3). President George W. Bush signed the act on January 12, 2007.

Chapter 3. Facilitation of State Criminal Law Enforcement 1. U.S. Constitution, Art. I, §8. 2. Joseph F. Zimmerman, The Silence of Congress: State Taxation of Interstate Commerce (Albany: State University of New York Press, 2007). 3. An Act to Regulate Commerce of 1887, 24 Stat. 379, 49 U.S.C. §1. 4. Wilson Act of 1890, 26 Stat. 313, 27 U.S.C. §121. 5. Observations on the FBI’s Interstate Identification Index (Washington, DC: U.S. General Accounting Office, 1984). 6. 62 Stat. 755 (1948), 18 U.S.C. §1073. 7. New York v. O’Neill, 359 U.S.1 at 11, 79 S.Ct.564 at 571 (1959). See also Application of the People of New York, 100 So.2d 149 (1958), and Florida Statutes Annotated, §§942.01–942.06 (1957). 8. An Act to Assist State and Local Governments in Reducing the Incidence of Crime of 1968, 82 Stat. 197, 18 U.S.C. §2516(1). 9. Joint Resolution Making Continuing Appropriations for Fiscal Year 1985 and for Other Purposes, 98 Stat. 2044, 21 U.S.C. §853(1–2). President Ronald Reagan signed the resolution on October 12, 1984. 10. United States v. Dicter, 198 F.3d 1284 (11th Cir 1999), and Dicter v. United States, 531 U.S. 828,121 S.Ct.77 (2000). 11. Stephen F. Smith, “Proportionality and Federalization,” Virginia Law Review 91 (June 2005): 893. 12. 1 Stat. 377. 13. License Tax Cases, 72 U.S.462, 5 Wallace 462 (1866). 14. Internal Revenue Act of 1864, 13 Stat. 223, and Internal Revenue Act of 1866, 14 Stat. 98. 15. 26 Stat. 313 (1890). See earlier acts: 15 Stat. 196 (1868), 17 Stat. 302 (1887), 19 Stat. 90 (1876), 24 Stat. 465 (1901), and 28 Stat. 963 (1901). 16. Wilkerson v. Rahrer, 140 U.S. 545, 11 S.Ct. 865 (1891). 17. 35 Stat. 1131 (1909), 18 U.S.C. §1716(f). 18. Webb-Kenyon Act of 1913, 37 Stat. 699, 27 U.S.C. §122. 19. Revenue Act of 1918, 40 Stat. 1057.

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20. United States v. Constantine, 296 U.S. 287 at 294, 56 S.Ct. 223 at 227 (1935). 21. Ibid. 22. Ibid., 296 U.S. 287 at 297, 56 S.Ct. 223 at 228. 23. Consult Autumn R. Veatch, “Where Does the Commerce Clause End and the Twenty-First Amendment Begin Under Bainbridge v. Turner?” New England Law Review 39 (Fall 2004): 111–61. 24. 62 Stat. 76 (1948). For amendments, see 104 Stat. 4925, 108 Stat. 2147. 25. United States v. Williams, 184 F.2d 663 (10th Cir. 1950). 26. 62 Stat. 781, 18 U.S.C. §1716(f). See also Joseph F. Zimmerman, Interstate Economic Relations (Albany: State University of New York Press, 2004). 27. Vijay Shanker, “Alcohol Direct Shipment Laws, the Commerce Clause, and the Twenty-First Amendment,” Virginia Law Review 85 (March 1999): 356–57. See Ellen Perlman, “Vintage Politics: The Complexities of Shipping Chardonnay Across State Lines,” Governing 9 (December 1995): 47. 28. Granholm v. Heald, 544 U.S. 460, 125 S.Ct.1885 (2005). Consult Robert L. Jones III, “Direct Shipment of Alcohol—Well-Aged and Finally Uncorked: The Supreme Court Decides Whether the Twenty-First Amendment Grants States the Power to Avoid the Dormant Commerce Clause,” University of Arkansas at Little Rock Law Review 28 (Spring 2006): 483–518. 29. Department of Justice Appropriations Act of 2005, 116 Stat. 1829, 27 U.S.C. §124(a)(5). 30. Organized Crime Control Act of 1970, 84 Stat. 936–37, 18 U.S.C. §§1511, 1955. 31. Ibid., 84 Stat. 941–48, 18 U.S.C. §§1961–968. 32. See Ronald J. Rychlak, “Lotteries, Revenues, and Social Costs: A Historical Examination of State-Sponsored Gambling,” Boston College Law Review 34 (December 1992): 11–81. 33. 26 Stat. 465, 18 U.S.C. §1302 and 28 Stat. 963, 18 U.S.C. §1301. 34. An Act for the Suppression of Lottery Traffic through National and Interstate Commerce and the Postal Service of 1895, 28 Stat. 963. 35. Champion v. Ames, 188 U.S. 321 at 325-26, 23 S.Ct. 321 at 325–26 (1903). 36. 62 Stat. 762 (1948), 18 U.S.C. §1301. 37. John Mikesell, “Lotteries in State Revenue Systems: Gauging a Popular Revenue Source After 35 Years,” State and Local Government Review 33 (Spring 2001): 97–98. 38. Pennsylvania Act 8 of 1993. 39. Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 1796, 42 U.S.C. §1301. 40. Pic-A-State PA, Incorporated v. Commonwealth of Pennsylvania, 42 F.3d 175 at 178–79 (1994). See Kristen D. Adams, “Interstate Gambling: Can States Stop the Run for the Border?” Emory Law Journal 44 (Summer 1995): 1025–67. 41. Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 2126, 18 U.S.C. §1301.

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42. 64 Stat. 1134 (1951), 15 U.S.C. §1172. 43. Nilva v. United States, 212 F.2d 115 (1954) and Nilva v. United States, 48 U.S. 825, 75 S.Ct. 40 (1954). 44. Revenue Act of 1951, 65 Stat. 452, 26 U.S.C. §3285. 45. United States v. Kahriger, 105 F. Supp. 322 (E.D.Pa.1952). 46. United States v. Kahriger, 345 U.S. 22 at 28, 73 S.Ct. 510 at 513 (1953). 47. Ibid., 345 U.S. 22 at 32, 73 S.Ct. 510 at 515. 48. Ibid., 345 U.S. 22 at 38, 73 S.Ct. 510 at 518. 49. Marchetti v. United States, 352 F.2d 848 (1965). 50. Marchetti v. United States, 390 U.S.39 at 49, 83 S.Ct. 697 at 703 (1969). 51. Unlawful Internet Gambling Enforcement Act of 2006, 120 Stat. 1955, 31 U.S.C. §5362(10). 52. Lacey Act of 1900, 31 Stat. 187, 16 U.S.C. §3371. 53. Robert S. Anderson, “The Lacey Act: America’s Premier Weapon in the Fight Against Unlawful Wildlife Trafficking,” Public Land Law Review 16 (1995): 27–85. 54. 70 Stat. 797 (1956), 18 U.S.C. §46. 55. 74 Stat. 754–55 (1960), 18 U.S.C. §43. 56. 83 Stat. 82 (1969), 16 U.S.C. §668aa(d). 57. Lacey Act Amendments of 1981, 95 Stat. 1074, 16 U.S.C. §3372. 58. Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 2147, 33 U.S.C. §330016(1)(L). 59. Consult Christine Fisher, “Conspiring to Violate the Lacey Act,” Environmental Law 32 (Spring 2002): 475–508. 60. Act of August 24, 1966, 80 Stat. 352, §25(b). 61. Animal Welfare Act Amendments of 1976, 90 Stat. 417, 7 U.S.C. §2131, and Animal Fighting Prohibition Enforcement Act of 2007, 121 Stat. 88, 18 U.S.C. §49. 62. Animal Enterprise Protection Act of 1992, 106 Stat. 928, 18 U.S.C. §43. 63. Animal Enterprise Terrorism Act of 2006, 120 Stat. 2652, 18 U.S.C. §1. 64. 9 Stat. 237 (1848). 65. 32 Stat. 632 (1902). 66. 32 Stat. 1157. 67. Food and Drugs Act of 1906, 34 Stat. 768. 68. Savage v. Jones, 225 U.S. 501, 32 S.Ct. 175 (1912). 69. Federal Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1040, 21 U.S.C. §342. See “Federal, Food, Drug, and Cosmetic Act,” Harvard Law Review 67 (February 1954): 632–722. 70. 42 Stat. 1487 (1923). 71. Carolene Products v. United States, 323 U.S. 18, 65 S.Ct.1 (1944). 72. Criminal Victims Act of 1990, 104 Stat. 4916, 11 U.S.C. §3102. 73. 108 Stat. 1996, 18 U.S.C. §13(b). 74. National Firearms Act of 1934, 48 Stat. 1236. 75. Sonzinsky v. United States, 300 U.S. 506 at 512, 57 S.Ct. 554 at 555 (1937).

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76. Ibid., 300 U.S. 506 at 513–14, 57 S.Ct. 554 at 556. 77. United States v. Miller, 307 U.S.174 at 177, 59 S.Ct. 816 at 818 (1939). 78. Haynes v. United States, 390 U.S. 85 at 96–97, 88 S.Ct. 722 at 730 (1968). 79. Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 2012, 26 U.S.C. §5802, 18 U.S.C. §923(d)(1)(F). 80. Act of July 27, 1868, 15 Stat. 194 at 196. See Michael McDonough, “Mail Fraud and the Good Faith Defense,” Saint John’s Journal of Legal Commentary 14 (Fall 1999): 279–99. 81. Act of June 8, 1872, 17 Stat. 283 at 323. 82. Durland v. United States, 161 U.S. 306 at 311, 16 S.Ct. 508 at 515 (1896). 83. Mail Fraud Act of 1909, 35 Stat. 1088 at 1130, 18 U.S.C. §1341. 84. Wire Fraud Act of 1952, 66 Stat. 722, 18 U.S.C. §1343. 85. Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 2087, 18 U.S.C. §1341. 86. Commodity Futures Modernization Act of 2000, 114 Stat. 2763A-436, 15 U.S.C. §78bb(a)(2). 87. Money Laundering Control Act of 1986, 100 Stat. 3207-18, 18 U.S.C. §1956. 88. United States v. Santos, 128 S.Ct. 2020, 76 USLW 431 (2008); Cueller v. United States, 128 S.Ct. 1994, 76 USLW 4354 (2008). 89. 18 Stat. 477 (1875), 32 Stat. 1213 (1903), 34 Stat. 898 (1907). 90. United States v. Bitty, 208 U.S. 393 at 402, 28 S.Ct. 396 at 405 (1908). 91. White Slave Traffic Act of 1910, 36 Stat. 825, 18 U.S.C. §2421. Congress in 1948 amended the act and deleted “White Slave Traffic Act,” 62 Stat. 812. 92. Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281 (1913). 93. 62 Stat. 768 (1948) as amended 18 U.S.C. §1461. 94. Child Sexual Abuse and Pornography Act of 1986, 100 Stat. 3511–512. 95. Harrison Narcotics Tax Act of 1914, 38 Stat. 785. 96. United States v. Jin Fuey Moy, 241 U.S. 394, 35 S.Ct. 658 (1916). 97. Revenue Act of 1921, 42 Stat. 227. 98. Alston v. United States, 274 U.S. 289 at 292, 47 S.Ct. 634 at 635 (1927). 99. Nigro v. United States, 276 U.S. 332 at 354, 48 S.Ct. 388 at 395 (1928). 100. Marihuana Tax Act of 1937, 50 Stat. 551, 26 U.S.C. §4741. 101. Leary v. United States, 383 F.2d. 851 (5th Cir.1967). 102. Leary v. United States, 395 U.S. 6 at 53, 89 S.Ct. 1532 at 1557 (1969). 103. Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, 21 U.S.C. §80l. 104. An Act Making Appropriations for the Department of Defense for the Fiscal Year Ending September 30, 2008, and for Other Purposes, 1 Stat. 1312–313.

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105. 91 Stat. 324 (1919), 18 U.S.C. §2362. The current law also includes aircraft and vessels. 106. Motor Vehicle Theft Law Enforcement Act of 1984, 98 Stat. 2754, 15 U.S.C. §1901. 107. Anti Car Theft Act of 1992, 106 Stat. 3384, 15 U.S.C. §1901, 18 U.S.C. §2119. 108. Ibid., 106 Stat. 3990–391, 106 Stat. 3398, 49 U.S.C. §33109. 109. Motor Vehicle Theft Prevention Act of 1994, 108 Stat. 2074, 2076, 42 U.S.C. §14171, 18 U.S.C. §511(a). 110. 41 Stat. 324 (1919), 18 U.S.C. §2316. 111. 62 Stat. 729, 18 U.S.C. §659. 112. Ibid. 113. 62 Stat. 803 (1948), 18 U.S.C. §2314. 114. Consult Dean Lanter, “ ‘In the Business’ of Fencing: Making Sense of Federal Sentencing Enhancements for Dealers in Stolen Goods,” Texas Law Review 77 (May 1999): 1485–525. 115. Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1296, 18 U.S.C. §842(f). 116. Jenkins Act of 1949, 63 Stat. 884, 15 U.S.C. §375. 117. Consumer Mail Order Association of America v. McGrath, 94 F. Supp. 705 (D.D.C. 1950), affirmed 340 U.S. 925, 71 S.Ct. 500 (1951). 118. 69 Stat. 627 (1955). 119. United States v. E.A. Goodyear, Incorporated, 334 F.Supp. 1096 (S.D.NY 1971). 120. Contraband Cigarette Act of 1978, 92 Stat. 2463, 18 U.S.C. §2341. 121. USA Patriot Improvement and Reauthorization Act of 2005, 120 Stat. 221, 18 U.S.C. §§2341(2), 2342(b). President George W. Bush signed the act on March 9, 2006. 122. Consult John L. Diamond, “Kidnapping: A Modern Definition,” American Journal of Criminal Law 13 (Fall 1985): 1–36. 123. Lindberg Kidnapping Act of 1934, 47 Stat. 326, 18 U.S.C. §1201. 124. M. Todd Scott, “Kidnapping Federalism: United States v. Wills and the Constitutionality of Extending Federal Criminal Law into the States,” Journal of Criminal Law and Criminology 93 (Winter/Spring 2003): 753–88. 125. 86 Stat. 1072, 18 U.S.C. §1201. 126. Protection of Children from Sexual Predators, 112 Stat. 2987, 18 U.S.C. §1201(a)(1). 127. Bank Robbery Act of 1934, 48 Stat. 783, 18 U.S.C. §2113. 128. Violence against Women and Department of Justice Reauthorization Act of 2005, 119 Stat. 2987, 18 U.S.C. §2261A, 47 U.S.C. §223(a). 129. 62 Stat. 812, 18 U.S.C. §2421. 130. Protection of Children against Sexual Exploitation Act of 1977 (signed in 1978), 92 Stat. 7, 18 U.S.C. §225(a). 131. Child Sexual Abuse and Pornography Act of 1986, 100 Stat. 3510, 18 U.S.C. §2251. 132. Child Pornography Act of 1966, 110 Stat. 3009, 18 U.S.C. §2251.

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187

133. Ashcroft v. Free Speech Coalition, 535 U.S. 234 at 258, 122 S.Ct. 1389 at 1406 (2002). 134. Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, 108 Stat. 654, 678, 686-87, 18 U.S.C. §§3559(e)(1), 2256(8), 2466A, 22452B. 135. No. 04-20290-CR-Middlebrooks (S.D. Fla, 2004). 136. United States v. Williams, 444 F.3d 1308–309. 137. United States v. Williams, 128 S.Ct. 2493, 2008 WL 1843836 (2008). 138. Protection of Children from Sexual Predators Act of 1998, 112 Stat. 2975, 2977, 2979, 18 U.S.C. §§2425, 2452(b)(1), 2470. 139. Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, 108 Stat. 654, 678, 681, 686, 687, 18 U.S.C. §§3559(e)(1), 2256(8), 2466A, 2252B. 140. Adam Walsh Child Protection and Safety Act of 2006, 120 Stat. 611, 620, 623-24, 648; 18 U.S.C. §§4248, 2251(F), 16990, 2252A(g). 141. Child Support Enforcement Amendments of 1984, 98 Stat. 1305, 42 U.S.C. §1305, and An Act to Impose a Criminal Penalty for Flight to Avoid Payment of Arrearages in Child Support of 1992, 106 Stat. 340, 18 U.S.C. §228(a)(1–3). 142. 78 Stat. 263, 18 U.S.C. §224(a-b). 143. NICS Improvement Amendments Act of 2007, 122 Stat. 2559, 18 U.S.C. §922 (signed by President George W. Bush on January 8, 2008). 144. National Driver Register Act of 1982, 96 Stat. 1740, 49 U.S.C. §30302. 145. Transportation Equity Act for the 21st Century, 112 Stat. 335, 49 U.S.C. §30302(e). 146. Motor Carrier Safety Act of 1991, 105 Stat. 2140, 49 U.S.C. Appendix §2302(b)(1). 147. Robert C. Pitcher, “The International Fuel Tax Agreement: Are There Lessons Here for Sales and Use Taxation?” State Tax Notes 20, March 12, 2001, 890. 148. Ibid. 149. Clean Air Act Amendments of 1990, 114 Stat. 2448, 42 U.S.C. §7511c. 150. A news release issued by Governor Mario M. Cuomo of New York dated February 1, 1994. 151. “OTC Announces Full Implementation of Nox Trading Program,” a news release issued by the Ozone Transport Commission, May 16, 2003.

Chapter 4. Congressional Financial Assistance 1. 1 Stat. 138 (1790), 2 Stat. 490 (1803), 5 Stat. 201 (1837). 2. 2 Stat. 225 (1803). 3. 3 Stat. 430 (1818). 4. Morrill Act of 1862, 12 Stat. 503. 5. State and Local Government Finances by Level of Government and by State: 2003–04 (Washington, DC: U.S. Bureau of the Census, 2004).

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6. Tax Injunction Act of 1937, 50 Stat. 738, 28 U.S.C. §1341. 7. Joseph F. Zimmerman, The Silence of Congress: State Taxation of Interstate Commerce (Albany: State University of New York Press, 2007). 8. Joseph F. Zimmerman. State-Local Relations: A Partnership Approach, 2nd ed (Westport, CT: Praeger Publishers, 1995), 53–60. 9. McCulloch v. Maryland, 17 U.S. 516, 4 Wheaton 516 (1819). 10. Weston v. Charleston, 27 U.S. 449, 2 Peters 449 (1829). 11. Collector v. Day, 78 U.S. 113 at 127, 11 Wallace 113 at 127 (1870). 12. Pollock v. Farmers Loan and Trust Company, 157 U.S. 429, 15 S.Ct. 673 (1895). 13. Brushaber v. Union Pacific Rail Road Company, 240 U.S. 1, 36 S.Ct. 236 (1916). 14. South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110 (1905). 15. New York v. United States, 326 U.S. 572, 66 S.Ct. 310 (1946). 16. Gillespie v. Oklahoma, 257 U.S. 501, 42 S.Ct. 171 (1922). 17. Panhandle Oil Company v. Knox, 277 U.S 218, 48 S.Ct. 451 (1928), and Indian Motorcycle Company v. United States, 283 U.S 570, 51 S.Ct. 601 (1931). 18. Metcalf & Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172 (1926), and Willicuts v. Bunn, 282 U.S. 216, 51 S.Ct. 125 (1931). 19. James v. Dravo Contracting Company, 302 U.S. 134, 58 S.Ct. 208 (1937). 20. Helvering v. Gerhardt, 304 U.S. 405, 58 S.Ct. 969 (1938). 21. Graves v. New York, 306 U.S. 466, 59 S.Ct. 595 (1939). 22. Public Salary Act of 1939, 53 Stat. 574, 4 U.S.C. §111. 23. Buck Act of 1940, 54 Stat. 1059, 4 U.S.C. §§105–10. 24. Van Allen v. Assessors, 70 U.S. 573, 3 Wallace 573 (1866), and First National Bank v. Anderson, 290 U.S. 341, 46 S.Ct. 135 (1926). 25. Graves v. New York, 306 U.S. 466 at 477, 59 S.Ct. 595 at 596–97 (1939). 26. Shaffer v. Carter, 252 U.S. 37, 40 S.Ct. 221 (1920). 27. Travis v. Yale & Towne Manufacturing Company, 252 U.S. 60, 40 S.Ct. 228 (1920). 28. Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191 (1975). 29. Alcan Aluminum Limited v. Franchise Tax Board of California, 1987 WL 153861 (N.D. Ill. 1987). 30. Alcan Aluminum Limited v. Franchise Board of California, 860 F.2d 688, 57 (7th Cir., 1988). 31. Franchise Tax Board of California v. Alcan Aluminum, 493 U.S. 331, 110 S.Ct. 661 (1990). See the Tax Injunction Act of 1937, 50 Stat. 738, 28 U.S.C. §1341. 32. Allied Signal, Incorporated v. Director, Division of Taxation, 504 U.S. 768, 112 S.Ct. 2251 (1992). 33. “An Ordinance for Ascertaining the Mode of Disposing of Lands in the Western Territory,” Journal of the American Congress, from 1774 to 1788 (Washington, DC: 1823), 395–400. See in particular, 398. 34. 1 Stat. 138 (1790). 35. 2 Stat. 490 (1808).

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36. 5 Stat. 201 (1837). 37. 2 Stat. 225 (1803). 38. 3 Stat. 430 (1818). 39. Morrill Act of 1862, 12 Stat. 503. 40. McGee v. Mathias, 71 U.S. 143, 4 Wallace 143 (1866). See the clause, U.S. Constitution, art. I, §10. 41. Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597 (1923). 42. Hatch Act of 1887, 24 Stat. 440, 7 U.S.C. §362. 43. Carey Act of 1894, 28 Stat. 422, 43 U.S.C. §641. 44. Weeks Act of 1911, 36 Stat. 961, 16 U.S.C. §552. 45. Federal Road Aid Act of 1916, 39 Stat. 355. 46. 42 Stat. 212 (1921). 47. Social Security Act of 1935, 49 Stat. 620, 42 U.S.C. §301. 48. Hatch Act of 1939, 53 Stat. 1147, 5 U.S.C. §118i, and Hatch Act of 1940, 54 Stat. 767, 5 U.S.C. §118i. 49. Joseph P. Harris, “The Future of Federal Grants-in-Aid,” The Annals of the American Academy of Political and Social Science 207 (January 1940): 14. 50. Federal Road Aid Act of 1916, 39 Stat. 355. 51. United States Housing Act of 1937, 50 Stat. 888, 12 U.S.C. §1701. 52. Fiscal Balance in the American Federal System (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1981). See also Carl W. Stenberg, State Involvement in Federal-Local Grant Programs: A Case Study of the “Buying In” Approach (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1970). 53. National Interstate and Defense Highways Act of 1956, 70 Stat. 374, 23 U.S.C. §101. 54. Carl W. Stenberg, “Federal-Local Relations in a Cutback Environment: Issues and Future Directions,” a paper presented at the annual conference of the American Politics Group of the United Kingdom Political Studies Association, Manchester, England, January 4, 1980. 55. Indiana Laws of 1947, chap. 377. 56. Categorical Grants: Their Role and Design: An Assessment and Proposed Policies (Washington, DC: U.S. Advisory Commission on Intergovernmental Relations, 1978), 42. 57. Ibid., 52–53. 58. Stenberg, “Federal-Local Relations,” 13. 59. W. Brooke Graves, American Intergovernmental Relations: Their Origins, Historical Development, and Current Status (New York: Charles Scribner’s Sons, 1964), 808–809. 60. David B. Walker, Toward a Functioning Federalism (Cambridge, MA: Winthrop Publishers, 1981), 220. 61. Ibid., 122. 62. Joseph F. Zimmerman, “Federal Preemption under Reagan’s New Federalism,” Publius: The Journal of Federalism 21 (Winter 1991): 7–28. 63. The Commission on the Organization of the Executive Branch of Government, Overseas Administration, Federal-State Relations, Federal Research (Washington,

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Notes to Chapter 4

DC: U.S. Government Printing Office, 1949), 36. See also the Partnership for Health Act of 1966 contained in the Comprehensive Health Planning and Public Health Services Amendments of 1966, 80 Stat. 1180, 42 U.S.C. §§243, 246. 64. Michael D. Reagan and John. G. Sanzone, The New Federalism, 2nd ed. (New York: Oxford University Press, 1981), 129–30. 65. Housing and Community Development Act of 1974, 88 Stat. 633, 42 U.S.C. §5301. 66. Omnibus Budget Reconciliation Act of 1981, 95 Stat. 357. 67. State and Local Fiscal Assistance Act of 1972, 86 Stat. 919, 33 U.S.C. §1221. 68. U.S. Bureau of the Census, Expenditures of General Revenue Sharing and Antirecession Fiscal Assistance Funds: 1977–78 (Washington, D.C.: U.S. Government Printing Office, 1980), 97, 99, 102–103, and 105. 69. How Revenue Sharing Formulas Distribute Aid: Urban-Rural Implications (Washington, D.C.: U.S. General Accounting Office, 1980). 70. Clean Air Act Amendments of 1990, 104 Stat. 2399, 42 U.S.C. §§7407, 7511c. 71. Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, 108 Stat. 2338, 12 U.S.C. §1811; Telecommunications Act of 1966, 110 Stat. 56, 47 U.S.C. §223; and Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1338, 12 U.S.C. §1811. 72. Weekly Compilation of Presidential Documents 37, March 5, 2001, 344. 73. Internet Nondiscrimination Act of 2001, 115 Stat. 703, 47 U.S.C. §609; Internet Tax Freedom Act of 2004, 118 Stat. 2615, 47 U.S.C. §609; and Internet Tax Freedom Act Amendments of 2007, 121 Stat. 1024, 47 U.S.C. §609. 74. Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. §1151. 75. Joseph F. Zimmerman, The Initiative: Citizen Law-Making (Westport, CT: Praeger Publishers, 1999). 76. Omnibus Budget Reconciliation Act of 1990, 104 Stat. 1388. 77. Revenue and Expenditure Control Act of 1968, 82 Stat. 251, 26 U.S.C. §103(c). 78. Mortgage Subsidy Bond Tax Act of 1983, 94 Stat. 2599, 26 U.S.C. §103(a). 79. Social Security Act Amendments of 1983, 97 Stat. 65, 42 U.S.C. §418. 80. Deficit Reduction Act of 1984, 98 Stat. 494, 26 U.S.C. §1. 81. Tax Reform Act of 1986, 100 Stat. 2085, 26 U.S.C. §1. 82. Ibid. 83. South Carolina v. Baker, 485 U.S. 505 at 521–22, 108 S.Ct. 1355 at 1366–67 (1988). 84. Revenue Act of 1926, 44 Stat. 9, 48 U.S.C. §845. 85. Social Security Act of 1935, 49 Stat. 620, 42 U.S.C. §301. 86. Economic Recovery Tax Act of 1981, 95 Stat. 399, 26 U.S.C. §103. 87. Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. §1151. 88. ”Fighting Federal Mandates,” New York Times, August 16, 1980, 20. 89. Unfunded Mandates Reform Act of 1995, 109 Sat. 48, 2 U.S.C. §1501.

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191

90. John C. Eastman, “Re-entering the Arena: Restoring a Judicial Role for Enforcing Limits on Federal Mandates,” Harvard Journal of Law & Public Policy 25 (Summer 2002): 952. 91. Bus Regulatory Reform Act of 1982, 96 Stat. 1104, 49 U.S.C. §10521. 92. Federal Road Aid Act of 1921, 42 Stat. 212; and Federal Road Aid Act of 1916, 39 Stat. 355. 93. Emergency Highway Energy Conservation Act of 1974, 87 Stat. 1046, 23 U.S.C. §154. 94. Energy Policy and Conservation Act of 1975, 89 Stat. 933, 42 U.S.C. §6201. 95. National Minimum Drinking Age Amendments of 1984, 98 Stat. 437, 23 U.S.C. §158. 96. South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 1793 (1988). 97. State Comprehensive Mental Health Services Plan Act of 1986, 100 Stat. 3494, 42 U.S.C. §201. 98. Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 1991, 104 Stat. 2184, 23 U.S.C. §104. 99. Department of Transportation and Related Agencies Appropriations Act for Fiscal Year 1992, 105 Stat. 944, 23 U.S.C. §159. 100. Transportation Equity Act for the 21st Century of 1998, 112 Stat. 126, 23 U.S.C. §159. 101. Tax Equity and Fiscal Responsibility Act of 1982, 96 Stat. 324, 26 U.S.C. §1. 102. South Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355 (1988). 103. Tax Reform Act of 1986, 100 Stat. 2085, 26 U.S.C. §1.

Chapter 5. Facilitation of Interstate Compact Formation 1. Felix Frankfurter and James Landis, “The Compact Clause of the Constitution—A Study in Interstate Adjustments,” Yale Law Journal 34 (May 1925)): 692–93 and 730–32. 2. Ibid., 732–34. 3. The Federalist Papers (New York: New American Library, 1961), 283. 4. 110 Stat. 919 (1996). 5. John R. Koza, Barry Fadem, Mark Grueskin, Michael S. Mandell, Robert Richie, and Joseph F. Zimmerman, Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote (Los Altos, California: National Popular Vote Press, 2006). 6. Agreement among the States to Elect the President by National Popular Vote, art.3, §9. 7. Armored Car Industry Reciprocity Act of 1993, 107 Stat. 276, 15 U.S.C. §5901. 8. Model State Campaign Finance Law (New York: National Municipal League, 1979).

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Notes to Chapter 5

9. For details, consult Joseph F. Zimmerman, Interstate Cooperation: Interstate Compacts, and Administrative Agreements (Westport, CT: Praeger Publishers, 2002). 10. Strategic Plan & Status Review: Anadromous Fish Restoration Program Merrimack River (Nashua, NH: Technical Committee for Anadromous Fishery Management of the Merrimack River Basin, 1997), Appendix 1. See also Connecticut Public Acts of 1979, Act 528; Massachusetts Laws of 1981, Chap. 716; New Hampshire Laws of 1979, Chap. 108; Vermont Acts of 1979, Act 89; and 97 Stat. 866 (1983). 11. 75 Stat. 688 (1961); 84 Stat. 1509 (1971). 12. Appalachian Regional Development Act of 1966, 79 Stat. 5, 40 U.S.C. Appendix 1; National Crime Prevention and Privacy Compact, 112 Stat. 1874, 42 U.S.C. §14611. 13. Consult Zimmerman, Interstate Cooperation: Compacts and Administrative Agreements; and Caroline N. Brown, Michael L. Buenger, Michael H. McCabe, and Richard L. Masters, The Evolving Use and the Changing Role of Interstate Compacts: A Practitioner’s Guide (Chicago: American Bar Association, 2006). 14. McCarran-Ferguson Act of 1945, 59 Stat. 33, 15 U.S.C. §1011. 15. Holmes v. Jennison, 39 U.S. 540 at 571, 14 Peters 540 at 571 (1840). 16. Ibid., 39 U.S. 540 at 572, 14 Peters 540 at 572. 17. Virginia v. Tennessee, 148 U.S. 503 at 520, 13 S.Ct.728 at 735 (1893). 18. Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275 at 285, 79 S.Ct. 785 at 792 (1959). 19. 110 Stat. 1609 (1996). 20. William K. Voit and Gary Nitting, Interstate Compacts and Agencies (Lexington, KY: The Council of State Governments, 1998). 21. Ann O’M Bowman, “State-to-State Relationships in the U.S. Federal Systems,” a paper prepared for delivery at the annual meeting of the American Political Science Association, San Francisco, September 1, 2001, 3. 22. Frankfurter and Landis, “The Compact Clause of the Constitution—A Study in Interstate Adjustments,” Yale Law Journal 34 (May 1925): 735–48. 23. 103 Stat. 1328 (1989). 24. For the Adult Offender Supervision Compact, consult Massachusetts Laws of 2005, chap. 121. For the Interstate Forest Fire Protection Compact, see Public Law 110–79 of 2007. See also the Georgia-South Carolina Boundary Compact of 1999, 113 Stat. 1307; Missouri-Nebraska Boundary Compact of 1999, 113 Stat. 1333; and Texas-Oklahoma Boundary Compact of 2000, 114 Stat. 919. 25. Bowman, “State-To-State Relationships in the U.S. Federal System,” 7. 26. Anu Mittal, Interstate Compacts: An Overview of the Structure and Governance of Environment and Natural Resource Compacts (Washington, DC: U.S. Government Accountability Office, 2007) (GAO-07-519). 27. Frankfurter and Landis, “The Compact Clause of the Constitution,” 735–41. 28. Oklahoma-Texas Boundary Compact, 114 Stat. 919 (2000). 29. Frederick L. Zimmermann and Mitchell Wendell, The Law and Use of Interstate Compacts (Lexington, KY: The Council of State Governments, 1976), 17. 30. Ibid.

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31. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 42 U.S.C. §2021d. 32. Calvin Sims, “Port Authority Seeks $1 Rise in Bridge Tolls,” New York Times, November 21, 1990, B1, B6. 33. Zimmermann and Wendell, The Law and Use of Interstate Compacts, 19. 34. Interview with Executive Director Daniel J. Smith of the Northeast Dairy Compact Commission, Montpelier, VT, September 18, 2001. 35. New York Laws of 1921, Chap.154, Art. XXII, §2. The New Jersey law contains an identical provision. See New Jersey Laws of 1921, Chap. 151, Art. XXII, §2. 36. Frederick L. Zimmermann and Mitchell Wendell, The Interstate Compact Since 1925 (Chicago: The Council of State Governments, 1951), 87. 37. 57 Stat. 88 at 91 (1943). 38. For the text of the compact, consult Wyoming Statutes Annotated, §§41-12-201 et seq. 39. Zimmermann and Wendell, The Law and Use of Interstate Compacts, 54. 40. Barron v. Baltimore, 32 U.S. 243 at 249, 7 Peters 243 at 249 (1833). 41. Green v. Biddle, 21 U.S.1, 8 Wheaton 1 (1823). 42. Dover v. Portsmouth Bridge, 17 N.H. 200 (1845). 43. Florida v. Georgia, 58 U.S. 478, 17 Howard 478 (1854). 44. Virginia v. Tennessee, 148 U.S. 503 at 520, 13 S.Ct.728 at 735 (1893). 45. Ibid. at 518. 46. Wharton v. Wise, 153 U.S. 155, 14 S.Ct. 783 (1894). 47. Ibid., 153 U.S. 155 at 167, 14 S.Ct. 783 at 786. 48. United States Steel Corporation v. Multistate Tax Commission, 434 U.S. 452 at 473, 98 S.Ct. 799 at 813 (1978). 49. Northeastern Interstate Forest Fire Protection Compact, 63 Stat. 272 (1949). 50. Crime Control Act of 1910, 36 Stat. 882. 51. The Weeks Act of 1910, 39 Stat. 882. 52. The Minnesota–South Dakota Boundary Compact of 1921, 49 Stat. 1239. 53. Crime Control Consent Act of 1934, 48 Stat. 909, and Tobacco Control Act of 1936, 49 Stat. 1239, 7 U.S.C. §515. 54. The Civil Defense and Disaster Compact Act of 1951, 64 Stat. 1249. 55. The Crime Control Act of 1951, 64 Stat. 1249. 56. The Airport Development Act of 1959, 73 Stat. 333. See also 110 Stat. 3396 (1996). 57. The Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 40 U.S.C. §2021d. 58. Omnibus Consolidated Rescissions and Appropriations Act of 1996, 110 Stat. 1321–447, 42 U.S.C. §2297h-11(c). 59. See the Western Interstate Nuclear Compact of 1970, 84 Stat. 997. 60. Emanuel Celler, “Congress, Compacts, and Interstate Authorities,” Law and Contemporary Problems 26 (Autumn 1961): 686. 61. Emergency Management Compact, 110 Stat. 3880 (1996).

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Notes to Chapter 5

62. 41 Stat. 1447 (1921). 63. 86 Stat. 383 (1979) and 64 Stat. 467 (1950). 64. Low-Level Radioactive Waste Policy Act of 1980, 94 Stat. 3347, 41 U.S.C. §2021d. 65. James v. Dravo Contracting Company 302 U.S. 134 at 148, 58 S.Ct. 208 at 216 (1937). 66. The Bi-State Development Agency Compact is an example. See 64 Stat. 568 (1950). 67. Boulder Canyon Project Act of 1928, 45 Stat. 1057. 68. Wabash Valley Compact, 73 Stat. 694 (1959); and Washington Metropolitan Area Transit Regulation Compact, 74 Stat. 1031 (1960). 69. Tobin v. United States, 306 F.2d 270 at 272-74 (D.C. Cir., 1962). 70. Zimmermann and Wendell, The Law and Use of Interstate Compacts, 24. 71. Congressional Record, August 5, 1939, 11175. 72. Congressional Record, April 2, 1941, 3285–86. The modified compact received congressional consent on May 26, 1943. See 57 Stat. 86 (1943). 73. Hinderlider v. La Plata and Cherry Creek Ditch Company, 304 U.S. 92, 58 S.Ct. 803 (1938). 74. Delaware River Joint Toll Bridge Commission v. Colburn, 310 U.S. 419, 60 S.Ct.1039 (1940). 75. Cuyler v. Adams, 449 U.S. 433,101 S.Ct. 703 (1981). 76. Murdoch v. Memphis, 87 U.S.590, 20 Wallace 590 (1874). 77. Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30,115 S.Ct. 394 (1994). 78. Entergy Arkansas, Incorporated v. Nebraska, 68 F.Supp.2d 1093 at 1100 (D.Neb 1999). 79. Entergy Arkansas, Incorporated v. Nebraska, 241 F.3d 979 at 991–92 (8th Cir. 2001). 80. For an example, consult Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908). 81. Removal of Causes Act of 1920, 41 Stat. 554, 28 U.S.C. §1441. 82. Kansas v. Colorado, 514 U.S. 669, 115 S.Ct. 1733 (1995). 83. Kansas v. Colorado, 533 U.S. 1,121 S.Ct. 2023 (2001). 84. Pennsylvania v. Wheeling and Belmont Bridge Company, 50 U.S. 647, 9 Howard 647 (1855). 85. Louisville Bridge Company v. United States, 242 U.S. 409, 37 S.Ct. 158 (1917). 86. Delaware River Basin Compact, Art. I, §1.6(a). 87. “Virginia General Assembly Takes Steps to Leave ASMFC,” Bay Journal, March 1995, 13. 88. Janice L. McBride, A Catalog and Guide to Maryland’s Interstate Compacts (Annapolis: Maryland Joint Committee on Federal Relations, 1987), 69 and a-8. 89. Georgetown v. Alexandria Canal Company, 37 U.S. 91 at 95–96, 12 Peters 91 at 95–96 (1838). 90. Frankfurter and Landis, “The Compact Clause of the Constitution—A Study in Interstate Adjustments,” 735–47.

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91. Patricia S. Florestano, “Past and Present Utilization of Interstate Compacts in the United States,” Publius: The Journal of Federalism 24 (Fall 1994): 19. 92. Ibid., 21–22. Consult also Voit and Nitting, Interstate Compacts and Agencies. 93. Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991); and Joseph F. Zimmerman, Congressional Preemption: Regulatory Federalism (Albany: State University of New York Press, 2005). 94. “Air Pollution: Message from the President of the United States, Congressional Record, January 30, 1967, H7097. See also the Air Quality Act of 1967, 81 Stat. 485, 42 U.S.C. §1857. 95. Consult Blakely M. Murphy, ed., Conservation of Oil and Gas: A Legal History (Chicago: American Bar Association, 1949), 454–55. 96. 67 Stat. 541 (1953). 97. 54 Stat. 752 (1940). 98. 49 Stat. 932 (1935). 99. Clean Water Act of 1977, 91 Stat. 1575, 33 U.S.C. §1251. See also Zimmerman, Federal Preemption; and Zimmerman, Congressional Preemption. 100. Consult Zimmerman, Interstate Cooperation. 101. “Governors, Premiers Wrap Up Conference with Pact Signing, Union Leader (Manchester, NH), July 19, 2000, A3. 102. 62 Stat. 762 (1948), 18 U.S.C. §1301. 103. “Agreement Reached to Restore Long Island Sound,” EPA Activities Update, October 3, 1994. 104. “Governor Pataki, Governor Dean, EPA Sign Lake Champlain Plan,” a news release issued by the office of Governor George E. Pataki, Albany, NY, October 28, 1996. 105. Motor Carrier Act of 1991, 105 Stat. 2140, 47 U.S.C. §609; and ITFA Legislation and State Constitutional Provisions Project: Final Report (Denver: National Conference of State Legislatures, 1999), 1. 106. Robert C. Pitcher, “The International Fuel Tax Agreement: Are There Lessons Here for Sales and Use Taxation?” State Tax Notes 20 (March 12, 2001): 890. 107. Administrative Procedure Act of 1946, 60 Stat. 918, 5 U.S.C. §551. 108. Emergency Management Compact, 110 Stat. 3880 (1996).

Chapter 6. State-Friendly Congressional Statutes 1. Joseph F. Zimmerman, Congressional Preemption: Regulatory Federalism (Albany: State University of New York Press, 2005). 2. Commercial Motor Vehicle Safety Act of 1986, 100 Stat. 3207, 49 U.S.C. §2701. 3. Consult Zimmerman, Congressional Preemption: Regulatory Federalism; and James T. O’Reilly, Federal Preemption of State and Local Law: Legislation, Regulation, and Litigation (Chicago: American Bar Association, 2006). 4. Copyright Act of 1790, 1 Stat. 124, 17 U.S.C. §101.

196

Notes to Chapter 6

5. Federal Railroad Safety Act of 1970, 84 Stat. 971, 45 U.S.C. §431. 6. Truth in Lending Act of 1968, 82 Stat. 151, 12 U.S.C. §1818. 7. Gibbons v. Ogden, 22 U.S.1 at 197, 9 Wheaton 1 at 197 (1824). 8. Herbert Wechsler, “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government,” Columbia Law Review 54 (1953): 543–60. 9. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 at 556, 105 S.Ct. 1005 at 1020 (1985). 10. Clean Air Amendments of 1970, 84 Stat. 1676, 42 U.S.C. §1857, 49 U.S.C. §1421. 11. Clean Air Act Amendments of 1977, 91 Stat. 695, 42 U.S.C. §7410. 12. See the Federal Register, December 5, 1977, 61453. 13. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465 (1976). 14. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 at 531, 105 S.Ct. 1005 at 1007 (1985). 15. Fair Labor Standards Amendments of 1985, 99 Stat. 787, 29 U.S.C. §201. 16. Age Discrimination in Employment Act of 1967, 81 Stat. 381, 29 U.S.C. §623. 17. Tax Equity and Fiscal Responsibility Act of 1982, 96 Stat. 324. 26 U.S.C. §1. 18. Age Discrimination in Employment Amendments of 1986, 100 Stat. 3342, 29 U.S.C. §623. 19. Surface Transportation Assistance Act of 1982, 96 Stat. 2097, 23 U.S.C. §101. 20. Motor Vehicle Width Regulation, 97 Stat. 59, 49 U.S.C. §2315. 21. Tandem Truck Safety Act of 1984, 98 Stat. 1829-830, 49 U.S.C. Appendix §2301, and Motor Carrier Safety Act of 1984, 98 Stat. 2832, 49 U.S.C. §1509. 22. Tandem Truck Safety Act of 1984, 98 Stat. 2829, 42 U.S.C. Appendix §§2301–302. 23. Ibid., 98 Stat. 2832, 49 U.S.C. Appendix §2312. 24. Motor Carrier Safety Act of 1984, 98 Stat. 2834, 49 U.S.C. §2502. 25. Ibid., 98 Stat. 2837, 49 U.S.C. §2508. 26. Ibid. 27. Ibid. 28. Department of Transportation and Related Agencies Appropriation Act of 1986, 100 Stat. 1288. 29. Safe Drinking Water Act of 1974, 88 Stat. 1665, 42 U.S.C. §201. 30. Safe Drinking Water Act Amendments of 1986, 100 Stat. 642, 42 U.S.C. §300g-1. 31. Ibid., 100 Stat. 643, 42 U.S.C. §300g-1. 32. Safe Drinking Water Act Amendments of 1996,110 Stat. 1613, 42 U.S.C. §300f. 33. Ibid., 110 Stat. 1615, 42 U.S.C. §300f(7). 34. Ibid., 110 Stat. 1627–29, 42 U.S.C. §300g-1(b)(12). 35. Ibid., 110 Stat. 1641–42, 42 U.S.C. §300f(7).

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36. “Governor Pataki, Mayor Guiliani, EPA, and Upstate Communities Announce a Watershed Agreement,” news release issued by the office of Governor George E. Pataki, Albany, New York, November 2, 1995. 37. Energy Policy Act of 2005, 119 Stat. 947, 16 U.S.C. §824p. 38. Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. §1151; Air Quality Act of 1967, 81 Stat. 485, 42 U.S.C. §1857; Safe Drinking Water Act of 1974, 88 Stat. 1665, 42 U.S.C. §201; and Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445, 30 U.S.C. §1201. 39. For details, consult Joseph F. Zimmerman, Interstate Disputes: The Supreme Court’s Original Jurisdiction (Albany: State University of New York Press, 2006). 40. Occupational Safety and Health Act of 1970, 84 Stat. 1590, 5 U.S.C. §5108. 41. Ibid., 84 Stat. 1608, 29 U.S.C. §667. 42. Toxic Substances Control Act of 1976, 90 Stat. 2038, 15 U.S.C. §2617. 43. Ibid., 90 Stat. 2039, 15 U.S.C. §2617. 44. Wholesome Meat Act of 1967, 81 Stat. 595, 21 U.S.C. §71. 45. Poultry Products Inspection Act of 1968, 82 Stat. 791, 21 U.S.C. §451. 46. Johnson Act of 1951, 64 Stat. 1134, 15 U.S.C. §1172(a). 47. Federal Environmental Pesticide Control Act of 1972, 86 Stat. 996–97, 7 U.S.C. §§136u-136v. 48. Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, 108 Stat. 2343, 12 U.S.C. §1831u. 49. Ibid., 108 Stat. 2352, 12 U.S.C. §36g. 50. Nuclear Waste Policy Act of 1982, 96 Stat. 2217, 42 U.S.C. §10125. 51. Omnibus Budget Reconciliation Act of 1988, 98 Stat. 437, 23 U.S.C. §158. 52. Yucca Mountain High Level Radioactive Waste Site Act of 2002, 116 Stat. 735, 42 U.S.C. §10135. 53. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1414, 12 U.S.C. §1831x(g)(2)(B). 54. Ibid., 113 Stat. 1414, 12 U.S.C. §1831x(g)(2)(B)(iii). 55. Coastal Zone Management Act of 1972, 86 Stat. 1280, 16 U.S.C. §1451. 56. Interstate Horseracing Act of 1978, 92 Stat. 1813, 15 U.S.C. §3004. 57. Kentucky Division, Horsemen’s Benevolent & Protective Association, Incorporated v. Turfway Park Racing Association, 832 F.Supp. 1097 (E.D.KY, 1993). 58. Kentucky Division, Horsemen’s Benevolent & Protective Association, Incorporated v. Turfway Park Racing Association, 20 F.3d 1406 at 1416–17 (6th Cir. 1994). 59. Port and Tanker Safety Act of 1978, 92 Stat. 1471, 33 U.S.C. §214 (1979 Supp). This act has been replaced by 46 U.S.C. §§7101, 7106, 7109. 60. Coast Guard Authorization Act of 1984, 98 Stat. 2862, 46 U.S.C. §2302. 61. An Act to Revise and Codify Title 49, United States Code, 108 Stat. 272, 49 U.S.C. §31705 (1994). 62. Electronic Signatures in Global and National Commerce Act of 2000, 114 Stat. 464, 15 U.S.C. §7001. 63. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1338, 12 U.S.C. §1811.

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Notes to Chapter 7

64. Abandoned Shipwreck Act of 1987, 102 Stat. 432, 43 U.S.C. §2101. 65. Unfunded Mandates Reform Act of 1995, 109 Stat. 48, 2 U.S.C. §1501. 66. Ibid., 109 Stat. 49, 2 U.S.C. §1503. 67. Ibid., 109 Stat. 53, 2 U.S.C. §658b(b-c). 68. Ibid., 109 Stat. 54, 2 U.S.C. §658b(e). 69. Ibid., 109 Stat. 55, 2 U.S.C. §658c(a). 70. Ibid., 109 Stat. 57, 2 U.S.C. §658(a)(2)(B). 71. Hotel and Motel Fire Safety Act of 1990, 104 Stat. 747, 5 U.S.C. §5701; and Federal Fire Prevention and Control Act of 1974, 88 Stat. 1535, 15 U.S.C. §2224. 72. Muhammad Ali Boxing Reform Act of 2000, 114 Stat. 322, 15 U.S.C. §6301. 73. Ibid., 114 Stat. 3223, 15 U.S.C. §6307c. 74. Ibid. 75. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 110 Stat. 2134, 42 U.S.C. §607(g-h). 76. Rendition Act of 1793, 1 Stat. 302, 18 U.S.C. §3182. See also Prigg v. Pennsylvania, 41 U.S. 539, 17 Peters 539 (1842). 77. Joseph F. Zimmerman, Interstate Economic Relations (Albany: State University of New York Press, 2004), 23–26. 78. Defense of Marriage Act of 1996, 110 Stat. 2419, 1 U.S.C. §1. 79. Brady Handgun Violence Prevention Act of 1993, 107 Stat. 1536 Stat., 18 U.S.C. §922(b)(c)(4). 80. NICS Improvement Amendments Act of 2007, 121 Stat. 2564, 2571, 42 U.S.C. §14601. 81. Debt Collection Improvement Act of 1996, 110 Stat. 3835, 31 U.S.C. §3701.

Chapter 7. Congressional Facilitation of State Action 1. Joseph F. Zimmerman, Interstate Disputes: The Supreme Court’s Original Jurisdiction (Albany: State University of New York Press, 2006). 2. V. O. Key Jr., “State Legislation Facilitative of Federal Action,” Annals of the American Academy of Political and Social Science 207 (January 1940): 12. 3. Max Farrand, ed., The Records of the Federal Convention of 1787, vol. II (New Haven: Yale University Press, 1966), 24. 4. Joseph F. Zimmerman, Congressional Preemption: Regulatory Federalism (Albany: State University of New York Press, 2005). 5. McCarran-Ferguson Act of 1945, 53 Stat. 33, 25 U.S.C. §1011. 6. Wilson Act of 1890, 26 Stat. 313, 27 U.S.C. §121. 7. Morrill Act of 1862, 12 Stat. 503. 8. The Anti Car Theft Act of 1992, 106 Stat. 3990–391, 106 Stat. 3398, 49 U.S.C. §33109. 9. For details, consult John R. Koza, Barry Fadem, Mark Grueskin, Michael S. Mandell, Robert Richie, and Joseph F. Zimmerman, Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote (Los Altos, California: National Popular Vote Press, 2006). The 888 word agreement appears on pages 248–49.

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10. Consult Zimmerman, Interstate Disputes: The Supreme Court’s Original Jurisdiction, 109–42. 11. 67 Stat. 541 (1953). 12. Alden v. Maine, 527 U.S. 706 at 714, 119 S.Ct. 2240 at 2247 (1999). 13. Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, 108 Stat. 2343, 12 U.S.C. §1831u. 14. The Federalist Papers (New York: New American Library, 1961), 227. 15. Buckley v. Valeo, 424 U.S. 1 at 152-53, 96 S.Ct. 612 at 697 (1976); and First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1457 (1978). 16. Henry M. Hart Jr., “The Relations between State and Federal Law,” Columbia Law Review 54 (April 1954): 541. 17. Edward I. Koch, “The Mandate Millstone,” The Public Interest 61 (Fall 1980): 42–57. 18. Hearings Before the Subcommittee on Air and Water Pollution of the Committee on Public Works, United States Senate on “Problems and Progress Associated with Control of Automobile Exhaust Emissions” (Washington, DC: U.S. Government Printing Office, 1967), 116. 19. Internet Tax Freedom Act Amendments of 2007, 121 Stat. 1024, 47 U.S.C. §609. 20. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1338, 12 U.S.C. §1811. 21. Electronic Signatures in Global and National Commerce Act of 2000, 114 Stat. 467, 15 U.S.C. §7002. 22. Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, 108 Stat. 2343, 2352, 12 U.S.C. §§36g, 1831u. 23. The Civil Defense and Disaster Compact Act of 1951, 64 Stat. 1249. 24. Emergency Management Assistance Compact, 110 Stat. 3880 (1996). 25. The Civil Defense and Disaster Compact Act of 1951, 64 Stat. 1249. 26. Chesapeake Bay Program: Improved Strategies Are Needed to Better Assess, Report, and Manage Restoration Programs (Washington, DC: U.S. Government Accountability Office, 2005) (Report No. 06-96). 27. Edward S. Corwin, “The Passing of Dual Federalism,” Virginia Law Review 36 (February 1950): 4. 28. Gaillard Hunt, ed., The Writings of James Madison (New York: G. P. Putnam’s Sons, 1901), 332–33. 29. Daniel J. Elazar, The American Partnership: Intergovernmental Cooperation in the Nineteenth Century (Chicago: University of Chicago Press, 1962). 30. John Kincaid, “From Cooperative to Coercive Federalism,” Annals of the American Academy of Political and Social Science 509 (May 1990): 139–52. 31. Daniel J. Elazar, “Opening the Third Century of American Federalism: Issues and Prospects,” Annals of the American Academy of Political and Social Science 509 (May 1990): 10. 32. Deil S. Wright, Understanding Intergovernmental Relations, 3rd ed. (Pacific Grove, CA: Brooks/Colege Publishing Company, 1988), 65–118. 33. Ibid., 36–38. 34. Joseph F. Zimmerman, Interstate Economic Relations (Albany: State University of New York Press, 2004); Zimmerman, Congressional Preemption: Regulatory

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Notes to Chapter 7

Federalism; Zimmerman, Interstate Disputes: The Supreme Court’s Original Jurisdiction; Joseph F. Zimmerman, The Silence of Congress: State Taxation of Interstate Commerce (Albany: State University of New York Press, 2007); and Joseph F. Zimmerman, State-Local Relations, 2nd ed. (Westport, CT: Praeger Publishers, 1994). 35. Zimmerman, Interstate Disputes: The Supreme Court’s Original Jurisdiction; and Zimmerman, The Silence of Congress: State Taxation of Interstate Commerce.

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Zimmerman, Joseph F. “A Beginner’s Guide to Interstate Compacts.” Journal of Insurance Regulation 22 (Spring 2004): 65–75. ———. “Congressional Preemption during the George W. Bush Administration.” Publius: The Journal of Federalism 37 (Summer 2007): 432–52. ———. “Congressional Preemption: Removal of State Regulatory Powers.” PS: Political Science & Politics 38 (July 2005): 375–78. ———. “Congressional Preemption and the States.” The Book of the States 2006. Lexington, KY: The Council of State Governments, 2006, 26–29. ———. “Congressional Regulation of Subnational Governments.” PS: Political Science & Politics 26 (June 1993): 177–81. ———. “Election Systems and Representative Democracy: Reflections on the Voting Rights Act of 1965.” National Civic Review 83 (Fall-Winter 1995): 287–309. ———, ed. “Federal Preemption.” Publius: The Journal of Federalism 23 (Fall 1993): 1–121. ———. “Federal Preemption under Reagan’s New Federalism.” Publius: The Journal of Federalism 21 (Winter 1991): 7–28. ———. “The Federal Voting Rights Act and Alternative Election Systems.” William & Mary Law Review 19 (Summer 1978): 621–60. ———. “Financing National Policy through Mandates.” National Civic Review 81 (Summer-Fall 1992): 367–73. ———. “The Interstate Agreement to Elect the President by National Popular Vote.” Connections (Spring 2007): 1–2, 8. ———, ed. “Interstate Relations.” Publius: The Journal of Federalism 24 (Fall 1994): 1–82. ———. “Interstate Relations Trends.” The Book of the States 2005. Lexington, KY: The Council of State Governments, 2005, 36–41. ———. “The Metropolitan Area Problem.” Annals of the American Academy of Political and Social Science 416 (Nov. 1974): 133–47. ———. “National-State Relations: Cooperative Federalism in the Twentieth Century.” Publius: The Journal of Federalism 31 (Spring 2001): 15–30. ———. “The Nature and Political Significance of Preemption.” PS: Political Science & Politics 38 (July 2005): 359–62. ———. “The 104th Congress and Federalism.” Current Municipal Problems 23, no. 4 (1997): 494–514. ———. “Overview of Voting Rights Laws” in Communities & The Voting Rights Act. Denver: National Civic League, 1996, 8–16. ———. “Preemption in the U.S. Federal System.” Publius: The Journal of Federalism 23 (Fall 1993): 1–13. ———. “Regulating Intergovernmental Relations in the 1990s.” The Annals of the American Academy of Political and Social Science 509 (May 1990): 48–72. ———. “Regulation of Professions by Interstate Compact.” The CPA Journal 74 (May 2004): 23–28. ———. “Relieving the Fiscal Burdens of State and Federal Mandates and Restraints.” Current Municipal Problems 19, no. 2 (1992): 216–24.

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Unpublished Materials Bork, Robert H. “The Constitution, Original Intent, and Economic Rights.” Presented at the University of San Diego Law School, Nov. 18, 1985. Bowman, Ann O’M. “Interstate Equilibrium: Competition and Cooperation in the U.S. Federal System.” Presented at the annual meeting of the American Political Science Association, Philadelphia, Pennsylvania, Aug. 28, 2003. Brennan, William Jr. “The Constitution of the United States: Contemporary Ratification.” Presented at a text and teaching symposium, Georgetown University, Washington, DC, Oct. 12, 1985. Crotty, Patricia M. “The New Federalism Game: Options for the States.” Paper presented at the annual meeting of the Northeastern Political Science Association, Philadelphia, PA, Nov. 14–16, 1985. Dineen, Robert E., Lillard W. Culver Jr., and R. Paul Rosenheimer. “Insurance Regulation in the Public Interest: A Better N.A.I.C.” Presented to Zone 4 of the National Association of Insurance Commissioners, Michigan State University, East Lansing, MI, Feb. 11, 1958. “Governor Pataki, Mayor Guiliani, EPA, and Upstate Communities Announce a Watershed Agreement.” News release issued by the office of Governor George E. Pataki, Albany, New York, Nov. 2, 1995. Hyde, Albert C. “The Politics of Environmental Decision Making: The Non-decision Issue.” Unpublished PhD diss., State University of New York at Albany, 1980. “Members Certify GLBA Reciprocity Requirement Met.” News release issued by the National Association of Insurance Commissioners, Sept. 11, 2002. Zimmerman, Joseph F. “Achieving State Insurance Uniformity: The Interstate Compact.” Presented at an Interstate Compact Symposium: Strengthening State Regulation of Insurance, San Diego, California, Dec. 7, 2002. ———. “Congressional Devolution of Powers to the States.” Presented at a conference on the federal nations of North America sponsored by the Eccles Centre for American Studies of the British Library and the Institute for the Study of Americas, University of London, March 19, 2007. ———. “Congressional Facilitation of State Law Enforcement.” Presented at the annual conference of the American Politics Group, University of London, Jan. 5, 2008.

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Index

229

Index accountability-responsibility problem, 160–61 Adam Walsh Child Protection and Safety Act of 2006, 73 adulterated or misbranded foods and drugs, 62–63 Age Discrimination in Employment Amendments of 1986, 139 Air Quality Act of 1967, 13, 143–44 Air Transportation Safety and System Stabilization Act of 2001, 14 Animal Enterprise Protection Act of 1992, 62 Anti-Car Theft Act of 1992, 69 Antifederalist Papers, 4–5 Articles of Confederation and Perpetual Union, 3–4, 32, 83, 107 Austin v. New Hampshire, 83 Baker, Howard H., Jr., 162–63 Bank Robbery Act of 1934, 73 Barnett Bank of Marion County v. Florida, 22 Beame, Abraham, 138 Blackmun, Harry A., 138 block grants, 94–95 Bowman, Ann O’M., 112 Brennan, William J., 20, 22 Bush, George H.W., 96 Bush, George W., 14, 96–97 Cable Communications Policy Act of 1984, 25 Carey Act of 1894, 86 Carey, Hugh L., 138

Carter, James E., 92 Child Pornography Act of 1996, 72 cigarette excise taxes, 70–71 citizen band radio, 25 Civil Defense and Disaster Compact, 121, 165 Clark, Jane P., 1–2 Clean Air Act Amendments of 1977, 45–46, 156 Clean Air Act Amendments of 1990, 13, 75 Clinton, William J., 96 Coast Guard Authorization Act of 1984, 21 Collector v. Day, 81 Commercial Motor Vehicle Safety Act of 1986, 13, 17, 136 compact commissions, 128–29 congressional financial assistance, 77–105, 157–58 Connecticut River Anadromous Fish Interstate Compact, 130 constitutional convention, 4–5 Contraband Cigarette Act of 1978, 70 cooperative federalism, theory of, ix, 1, 168 Copyright Act of 1790, 136 Corwin, Edward S., 167 crosscutting and crossover sanctions, 102–03 Crime Control Act of 1910, 120 Cuyler v. Adams, 123 Declaration of Independence, 2 Defense of Marriage Act of 1996, 151

229

230

Index

delegated powers, 8–9 devolution of powers, ix, 19–52, 155–56 powers devolved to legislatures, 20–42 powers devolved to governors, 42–48 powers devolved to state attorneys general, 48–50 Do Not Call Implementation Act of 2003, 13 Driver License Compact, 129 drunk driving, 63–64 dual federalism, theory of, ix, 1, 167–68 Elazar, Daniel J., 1, 168 Electronic Signatures in Global and National Commerce Act of 2000, 148 facilitation of state criminal law enforcement, 53–76, 156–57 alcoholic beverages, 55–57 gambling, 57–61 animals, birds, fish, and plants, 61–62 adulterated or misbranded foods and drugs, 62–63 drunk driving, 63–64 firearms, 64–65 fraud, 65 money laundering, 66 morality, 66–67 narcotics, 67–68 stolen motor vehicles, 68–69 stolen livestock and goods, 69–70 cigarette excise taxes, 70–71 kidnapping and bank robbery, 71 stalking of women, 71 protection of children, 71–73 sporting contests, 73 federal government coercion, 101–04 crosscutting and crossover sanctions, 102–03 mandates and restraints, 101–02 tax sanctions, 103–04

Federal Road Aid Act of 1916, 86–89 federalism theories, 167–70 Federalist Papers, 4–5, 107–08, 160 firearms, 64–65 Food and Drug Act of 1906, 63 fraud, 65 Frankfurter, Felix, 61, 112 full faith and credit, 151 gamblers’ occupational tax, 60–61 gambling, 26–28 Garcia v. San Antonio Metropolitan Transit Authority, 129 general revenue sharing, 95–96 general theory of federalism, 171–72 general welfare clause, 11 governmental tax immunity, 81–83 Gramm-Leach-Bliley Financial Modernization Act of 1999, 23–24, 146–48 grants-in-aid controversy, 89–103 national administrative responses, 91–97 Graves v. New York, 82 Graves, W. Brooke, 91 Giuliani, Rudolph, 142–43 Hamilton, Alexander, 6–7 Harlan, John M., 32–33 Harrison Narcotics Tax Act of 1914, 67 Hart, Henry M., Jr., 161 Hatch Act of 1887, 86 Haynes v. United States, 64 highway safety, 73–74 Hoover commission, 94 Hoover, Herbert C., 165 Hotel and Motel Fire Safety Act of 1990, 150 Hughes, Charles E., 122 Imperium in Imperio, 1 implied powers, 9–10 Indian Gaming Regulatory Act of 1988, 27 insurance regulation, 22–24, 110, 114, 132

Index international fuel tax agreement, 74–75, 131 international registration plan, 75, 131 internet gambling, 61 interstate administrative agreements, 130–31 interstate compacts, 107–34, 158–59 negotiation and ratification, 113 congressional consent, 118–20 compact formation facilitation, 120–22 consent conditions, 122–23 effects of congressional consent, 123–24 compact amendment and termination, 125–26 types, 126–27 Interstate Horseracing Act of 1978, 26 Interstate Insurance Product Regulation Compact, 110, 114, 132 Jay, John, 6 Jenkins Act of 1949, 70–71 Johnson Act of 1951, 26 Johnson, Lyndon B., 12, 89, 91–92 kaleidoscopic view, 171–72 Kennedy, John F., 165 Key, V. O., Jr., 2, 153 kidnapping, 71 Koch, Edward I., 162 Lacey Act of 1900, 61–62 Landis, James M., 112 Lehman, Herbert H., 117 Liability Risk Retention Act of 1986, 22 license cases, 55, 60 limited regulatory authority turn-backs, 50–51 Lindberg Kidnapping Act of 1933, 71 Lindsay, John V., 138 lotteries, 58–59 Low-Level Radioactive Waste Policy Act of 1980, 28, 121

231

Madison, James, 6, 107–08, 154, 160 mandates and restraints, 136 Marihuana Tax Act, 68 marine activities, 21 Marshall, John, 119, 137–38 Massachusetts v. Mellon, 86 McCarran Ferguson Act of 1945, 22–23, 110, 155 McCullough v. Maryland, 10, 81 Merrimack River Anadromous Fish Interstate Administrative Agreement, 130 Mid-Atlantic States Air Pollution Control Compact, 12 minimum standards preemption, 28–29, 143–45 Molinari, Guy, 141 money laundering, 65–66 morality, 66–67 more stringent state standards, 20–31, 145–46 Multi-State Tax Compact, 120 narcotics, 67–68 national association of insurance commissioners, 23–24 national driver register, 73–74 national financial assistance, 85–89 categorical grants-in-aid, 85–86 conditional grants-in-aid, 86–87 national firearms act of 1934, 25–26, 64–65 National League of Cities v. Usery, 139 necessary and proper clause, 10 Nixon, Richard M., 92, 94 non-commission compacts, 129–30 North American Free Trade Agreement, 12 Northeast Dairy Compact, 108, 116 Northeastern Interstate Forest Fire Compact, 120 Northwest Ordinance, 85 Occupational Safety and Health Act of 1970, 145 Ocean Dumping Ban Act of 1988, 16

232

Index

O’Leary, Timothy F., 68 opt-out statute, 146 Pataki, George E., 142–43 phases of federalism, 170–71 Pollock v. Farmers Loan and Trust Company, 81 Port and Tanker Safety Act of 1978, 21 preemption, 11–24, 136–49 nature, 11–12 types, 13–24 enactment pace, 14–15 partial, 13–14 preemption relief, 137–43 property appraisal, 31 protection of children, 71–73 Public Salary Act of 1939, 82 quarantines, 31–33 Reagan, Ronald, 92–93, 95, 98 recommendations, 161–67 Congress, 162–65 President, 165–66 state legislatures, 166 state governors, 167 resultant powers, 10 Revenue Act of 1951, 26–27, 61 reverse preemption, 41–42, 147 Rockefeller, Nelson A., 12, 138 Roosevelt, Theodore, 165 Safe Drinking Water Act Amendments of 1996, 15, 142 savings clauses, 33–42, 135 Seminole Tribe of Florida v. Florida, 27 Shays, Daniel, 4 Shipping Statute, 21 silence of Congress, 11–12, 53 sixteenth amendment, 81 Spitzer, Eliot, 16 sporting contests, 73 stalking of women, 71 state-friendly congressional statutes, 135–52, 159–60 preemption statutes, 136–43

innovative preemption statutes 143–49 innovative nonpreemptive statutes, 149–51 state taxation of nonresident income, 83–85 Stenberg, Carl W., 89–90 stolen livestock and goods, 69–70 stolen motor vehicles, 68–69 subsidiarity principle, ix–x supremacy of the law clause, 10–11 Taney, Roger B., 110–11 tax credits, 99–100 tax deductions, 97–98 tax-exempt municipal bonds, 98–99 tax sanctions, 103–04 taxation, 78–85 constitutional provisions, 80–81 formula apportionment, 84–85 governmental tax immunity, 81–83 nonresident income, 83–85 Tenth Amendment, 19, 25 Terrorism Risk Insurance Act of 2002, 24 Tobin v. United States, 122 transportation of women for immoral purposes, 66–67 Twenty-First Amendment, 20 Unfunded Mandates Reform Act of 1995, 14–16, 102, 148–49 Uniform Law to Secure the Attendance of Witnesses from within or without a State in Criminal Proceedings, 54 uniform regulatory laws, 108–10 U.S. Constitution, 1, 4–11 United States Housing Act of 1937, 88 United States v. Kahriger, 27 Vessel Safety Standards Act of 1983, 21 Virginia v. Tennessee, 119–20 Walker, David B., 91

Index Water Quality Act of 1965, 137, 143 Wechsler, Herbert, 137–38 Weeks Act of 1911, 120 Wendell, Mitchell, 114, 116, 118, 122–23

233

Wilson Act of 1890, 53 Wright, Deil S., 160–61 Zimmermann, Frederick L., 114, 116, 118, 122–23

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