Staking out the border between commandeering and conditional preemption: is the Driver's Privacy Protection Act constitutional under the Tenth Amendment?

AuthorPreiser, Rachel F.

INTRODUCTION

Congress passed the Driver's Privacy Protection Act of 1994 ("DPPA") in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products.(1) Thirty-four states sell their department of motor vehicles ("DMV") records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them.(2) This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens.(3)

In considering the DPPA, Congress dwelt in particular on the use of DMV information by murderers, robbers, and stalkers to identify their victims.(4) In California, a man who had hired a private detective to obtain the address of actress Rebecca Shaeffer from the state department of motor vehicles brutally murdered her in the doorway of her Los Angeles apartment.(5) Another California resident copied down the license plate numbers of five young women and sent them threatening letters after obtaining their home addresses from the California DMV.(6) Anti-abortion groups have long used license plate numbers of cars parked in front of abortion clinics to track down and harass women seeking abortions by obtaining their addresses from DMV records.(7)

The abandon with which DMVs sell the complete contents of their records on registered drivers to national marketing companies is equally disconcerting. These national marketers specialize in identifying the overweight, divorced, wealthy, or short in stature in order to assist enterprises eager to target the consumer base most responsive to their form of solicitation.(8) Because the compilation, analysis, and distribution of such information is in fact an important national industry, accounting for five percent of U.S. employment and $350 billion in annual revenue,(9) the regulation of that industry is an area of immediate national concern.(10)

The DPPA regulates the distribution of DMV personal information by placing a prohibition both on state and individual activities. First, the Act prohibits states from freely releasing personal information from state DMV records.(11) It then enumerates the conditions under which states may continue to distribute DMV information -- if they choose not to abandon the field to federal control -- and limits the redistribution of that information by authorized individuals who obtain it from the DMV.(12) The state may opt out of the regulatory scheme entirely by placing a notice on all of its official forms indicating that personal information collected may be freely disclosed and providing the opportunity for any registrant to prohibit such disclosure.(13)

Three of the four district courts that have considered challenges to the DPPA have held the law unconstitutional, although two of those three were reversed on appeal.(14) At both the district and appellate court levels, dispute over the Act focuses not on whether it falls within Congress's Article I commerce power, but rather on the question of whether the Act impermissibly regulates the states in violation of the limitations on federal power imposed by the Tenth Amendment.(15) Although the Supreme Court has established that the two inquiries are, in theory, two sides of the same coin,(16) courts have often treated them independently.(17)

The first inquiry deserves more serious attention than courts evaluating the DPPA have given it. Under modern Commerce Clause jurisprudence, which posits relatedness to the interstate exchange of goods and services as the touchstone for the federal commerce power,(18) the DPPA seems a valid exercise of congressional authority. Under a more functional, less formalistic view of the Commerce Clause proposed by Professor Donald Regan, the question of whether the DPPA passes muster is less clear-cut. This view of the Commerce Clause extends federal power only to areas of concern to the nation as a nation, that the states are not competent to regulate independently.(19) The DPPA may address such an issue. The second inquiry, like the first, is concerned with whether the federal government is using the states to accomplish a federal objective that is beyond its enumerated powers. In pursuing this Tenth Amendment inquiry, however, the Court has been primarily concerned with the mode of regulation rather than whether a federal law regulates an appropriate domain. The Court in New York v. United States struck down the "take-title" provision of the Low-Level Radioactive Waste Policy Act on the grounds that it "commandeered" state legislatures to develop a federally prescribed regulatory program, while recognizing that the domain of regulation was within federal power.(20) The Court expanded on this anti-commandeering rule in Printz v. United States, holding that the federal government could not circumvent the rule simply by commanding state officers rather than the state itself.(21) The Court found that laws that commandeer the states violate the Tenth Amendment and fundamental federalist principles by allowing the federal government to operate indirectly through the states, thereby avoiding financial and political responsibility for federal policies.(22)

The two circuit courts that have held the DPPA unconstitutional found that the burden of compliance upon states violates the anti-commandeering precedent laid down by New York and Printz.(23) In holding the DPPA unconstitutional, these courts state that the DPPA conscripts state officers into federal service by requiring them to become familiar with and implement new standards for the release of DMV information.(24) One district court has also based its decision to enjoin the law's application on the burdensome fines it imposes on noncompliant states.(25)

In contrast, the district court in Pryor v. Reno and several appellate courts have upheld the DPPA(26) by relying on earlier Supreme Court Tenth Amendment jurisprudence, often referred to as the Garcia line of cases.(27) In Garcia v. San Antonio Metropolitan Transit Authority, the Court held that the minimum wage and overtime provisions of the Fair Labor Standards Act should be applied to state, as well as private, employers.(28) In so doing, Garcia rejected the prohibition on federal regulation of states as states in domains of traditional state function that had been established by National League of Cities v. Usery.(29) The courts that have upheld the DPPA, relying on the Garcia line of cases, rest their decisions on the distinction between federal laws that commandeer the states and federal laws that simply require state compliance in order to take effect.

The New York and Printz decisions are in some tension with the Tenth Amendment jurisprudence that immediately followed Garcia,(30) because they rely to some extent on pre-Garcia formalisms regarding dual sovereignty.(31) The split between the courts on the constitutionality of the DPPA testifies to this tension, for the disagreement turns on the question of which of the two competing lines of precedent should control.(32) While acknowledging the tension in Tenth Amendment jurisprudence following Garcia, courts have recently reaffirmed that the Garcia line remains good law.(33)

Confusion over the relationship between the Garcia and New York-Printz lines of cases is a central feature of the disagreement over the constitutionality of the DPPA. The New York Court characterizes the laws at issue in the Garcia line of cases -- laws the Court describes as "generally applicable," because they subject states to the same legislation applicable to private parties -- as posing no problem for its anti-commandeering principle.(34) In addition, the New York and Printz Courts acknowledge that federal laws that preempt state regulation, or conditionally preempt it by allowing states to choose between preemption and implementation of federal regulations, also escape the problems posed by commandeering.(35) The Courts stop short, however, of explicitly recognizing that laws of general applicability usually operate in a preemptive mode.(36) This Note draws the connection between generally applicable laws and the mode of conditional preemption, arguing that both are constitutionally unproblematic because they tend to preserve the fundamental federalist principle of political accountability. By providing a unifying federalist explanation for the privileged place given to laws of general applicability and conditional preemption, this Note lends coherence to the strands of Tenth Amendment jurisprudence.

This Note argues for the constitutionality of the DPPA, first engaging the threshold question of whether the law falls within the federal commerce power and then considering whether its legislative mode is permissible in light of Tenth Amendment jurisprudence. Part I argues that the DPPA is properly within the reach of Congress's commerce power. Part II lays the groundwork for the Tenth Amendment examination of the DPPA's legislative mode, by establishing the relation of general applicability to commandeering and preemption in a federalism context. Part III argues that the DPPA takes the form of conditional preemption rather than impermissible commandeering; hence, it should survive the second part of the constitutional analysis.

  1. EVALUATING THE DPPA AS AN EXERCISE OF FEDERAL PREEMPTION UNDER THE COMMERCE CLAUSE

    Congress's longstanding power to preempt state law within a field subject to national control is not subject to dispute.(37) The preemptive mode of federal infringement on the states' exercise of power must, however, be limited to areas in which the Constitution explicitly grants federal control.(38) Otherwise, the national government would cease to be a government of enumerated powers.

    An assessment of whether the DPPA is constitutional relies on the...

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