Inventing equal sovereignty.

• Author: Litman, Leah M.
• Position: II. Reinvention: State Equality as a Constitutional Norm D. Congressional Practice through Conclusion, with footnotes, p. 1242-1273

4. Congressional Practice

   In part because the meaning of the constitutional text, history, and structure are ambiguous, a useful measure of the constitutional validity of the equal sovereignty principle is its "descriptive accuracy," (204) meaning whether the principle describes or fits with most congressional practice. (205) A congressional history of treating some states differently than others bears on the legitimacy and scope of the equal sovereignty principle, because it engages with the Court's own justification for the equal sovereignty principle--the purported "historic tradition that all the States enjoy equal sovereignty." (206) Because the Court's account of equal sovereignty rested on tradition and convention, we should feel comfortable eliminating accounts of the equal sovereignty principle that depart too far from congressional practice. (207) Congressional statutes may also offer more specific evidence on the scope of the equal sovereignty principle, at least compared to the high-level abstractions and inferences that are made from the Constitution's text, history, and structure.

   The reality is that Congress has frequently enacted both laws that specifically identify particular states and laws that result in differential effects on different states. (208) And it has done so for a very long time. (209) Statutes passed in the first and second Congresses regulated merchandise reports for ships by establishing different reporting requirements for ships that docked in different states. (210) Statutes granted authority to federal officials to issue transportation permits and the federal officials' authority varied by state; (211) the payment of federal judges also varied by state. (212) Statutes passed in the early 1800s also differentiated between the states by granting jurisdiction over certain federal revenue offenses only to certain state courts (213) and by allocating federal money or federal improvements to particular states. (214)

   Beyond these historical examples, many statutes today specifically identify particular states for differential treatment or adopt a rule that has differential effects on different states. Consider the following laws (some of which have already been discussed):

   * Some federal laws impose limits on states' lawmaking powers while exempting particular states, or categories of states, from federal regulation.

   ** PASPA prohibits state-run gambling unless state gambling "was authorized by a statute" and "actually was conducted" prior to October 1991. (215) Federal law prohibited states from imposing taxes on internet access between 1998 and 2001 unless, before 1998, "a State ... generally collected such tax on charges for Internet access." (216)

   ** In the area of commercial driving regulation, federal law establishes "[s]pecial rules for Wyoming, Ohio, Alaska, Iowa, and Nebraska." (217) "Ohio may allow the operation of commercial motor vehicle combinations with 3 property-carrying units of 28.5 feet each," but other states may not. (218) And, unlike other states, "Nebraska may allow the operation of a truck tractor and 2 trailers or semitrailers not in actual lawful operation on a regular or periodic basis on June 1, 1991." (219)

   ** All states except for California that seek to obtain a waiver from the EPA's preemption provisions bear the burden of proof to show that their emission standards are at least as protective as the federal standards. But California may adopt its own vehicle-emission standards unless the EPA shows that California's standards are not equally protective of public health. (220)

   ** The Employee Retirement and Income Security Act (ERISA) preempts all state laws that "relate to any employee benefit plan," (221) but exempts from that provision "the Hawaii Prepaid Health Care Act" or subsequent amendments to the Act. (222)

   ** Federal housing law generally requires entities administering federal housing assistance "to include a resident of public housing or a recipient of assistance." (223) But "the Housing Authority of the county of Los Angeles, California and [of] the States of Alaska, Iowa, and Mississippi" are exempt from this requirement. (224)

   * Some federal laws empower particular states to do things others cannot do.

   ** Federal law allows "[t]he State of South Carolina ... [to] limit the volume of low-level radioactive waste accepted for disposal ... to a total of 8,400,000 cubic feet." (225) Federal law also contains state-specific provisions for Washington and Nevada. (226)

   ** Congress frequently signs off on interstate compacts, making federal laws that apply only to particular states. (227)

   * Some federal laws establish programs that are limited to particular states.

   ** Federal law requires only "the States of Alaska, Idaho, Oregon and Washington" to advise the federal government about laws and regulations pertaining to salmon. (228)

   ** Federal law authorizes the Secretary of Energy to operate a home-heating oil reserve in and for "the States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, and New Jersey." (229)

   * Federal law gives benefits to some states but not others, or gives different packages of benefits to different states.

   * Federal law establishes differing Medicare payments--the amount that hospitals, including state-run hospitals, are reimbursed for medical expenses--for different states. "[F]rontier States," meaning states in which at least half of the counties have a population of less than six individuals per square mile, are reimbursed at a different rate than nonfrontier states. (230) Other cooperative-spending programs contain similar formulas that are also tied to population and that result in different treatment of different states (231) or that single out particular regions for different treatment. (232)

   ** Federal law provides for a litany of tax benefits for various "bond[s] ... issued by the State of Alabama, Louisiana, or Mississippi" or projects or loans initiated by those states. (233)

   ** Spending programs condition a state's receipt of federal money on the state complying with terms specified by federal law. But the programs also authorize federal agencies to waive the terms for some states but not others. These states that received waivers may receive federal money even though they are not required to comply with the same terms applied to other states. (234)

   ** Federal spending provisions frequently contain earmarks for particular states. (235) In the wake of Hurricane Katrina, Congress earmarked billions of dollars for Louisiana and Mississippi. (236)

   * Federal laws treat states differently in other ways as well.

   ** Congress designated an area in Nevada, Yucca Mountain, as a site for high-level radioactive waste, allocated funds for the project, and imposed obligations on Nevada related to the designation. (237) Congress also allowed the president to designate other areas as radioactive-waste sites, which would trigger a similar set of benefits and obligations on states with designated sites. (238)

   ** The Agricultural Adjustment Act established state quotas for crop production. (239)

   Unlike the constitutional text and history, congressional practice provides evidence not only about whether equal sovereignty should be thought of as a constitutional rule, but also about what its contours might be. Given the relevant congressional practice, it is hard to defend the idea that Congress may not regulate in ways that have differential effects on different states or specifically identify particular states when legislating.

   The equal sovereignty principle could be narrowly defined, for example, only to apply to laws that have differential effects on different states' lawmaking powers, as opposed to laws that treat private individuals differently by virtue of the fact that those individuals are in different states. (240) That is, it might be the case that federal law could penalize an individual for jaywalking in State A but not State B. But federal law could not allow State A to legalize jaywalking, but forbid State B from legalizing jaywalking. Indeed, this is how both Colby and Schmitt define the equal sovereignty principle: "It is a guarantee of equal sovereignty," (241) which, to them, means that every state must have the same "independent authority and ... right to govern." (242) They therefore maintain that the equal sovereignty principle is not concerned with laws framed in geographic terms that merely affect some states more than others, such as federal spending laws or laws that merely regulate federal property that happens to be in particular states. (243)

   But many of the aforementioned statutes curtail or expand some states' lawmaking authority more than others and, in doing so, differentially affect different states' ability to govern. PASPA, ERISA, CAA, commercial-driving restrictions, and waste-removal provisions all allow some states to make laws that others cannot. The same is true for provisions that impose staffing requirements on only some state administrative bodies; through these requirements, such provisions remove from those states the authority to govern themselves by other means. (244)

   Laws that are framed in "geographic" terms will also differentially affect states' regulatory authority by virtue of the doctrine of preemption. Some Surface Mining Act provisions establish different requirements for mining operations in "prime farmland." (245) Because some states have more "prime farmland" than others, the law limited some states' lawmaking powers more than others. For example, where the more stringent Surface Mining Act provisions applied, a state was precluded from adopting the more lenient landuse regulations that other states with less prime farmland could adopt.

   For similar reasons, laws that purport to regulate federal property will have differential effects on different states' lawmaking authority. The power to regulate federal...