State Sovereignty and the Anti-Commandeering Cases

DOI10.1177/000271620157400112
AuthorMatthew D. Adler
Date01 March 2001
Published date01 March 2001
Subject MatterArticles
158
State
Sovereignty
and
the
Anti-Commandeering
Cases
By
MATTHEW
D.
ADLER
Matthew
Adler
is
a
professor
of
law
at
the
University
of Pennsylvania
Law
School.
He
is
a
former
Marshall
Scholar
and
clerked
for
Judge
Harry
Edwards
and
Justice
Sandra
Day
O’Connor.
His
scholarship
generally
involves
the
application
of
analytic
philosophy
to
problems
of public
law.
He
has
recently
written
about
constitutional
fed-
eralism,
expressive
theories
of law,
cost-benefit
analysis,
and
the
peculiar
way
in
which
constitutional
doctrine
focuses
on
impermissible
rule-types
rather
than
protected
act-types.
ABSTRACT:
The
anti-commandeering
doctrine,
recently
announced
by
the
Supreme
Court
in
New
York
v.
United
States
and
Printz
v.
United
States,
prohibits
the
federal
government
from
commandeer-
ing
state
governments:
more
specifically,
from
imposing
targeted,
af-
firmative,
coercive
duties
upon
state
legislators
or
executive
officials.
This
doctrine
is
best
understood
as
an
external
constraint
upon
con-
gressional
power—analogous
to
the
constraints
set
forth
in
the
Bill
of
Rights—but
one
that
lacks
an
explicit
textual
basis.
Should
the
Con-
stitution
indeed
be
interpreted
to
include
a
judicially
enforceable
con-
straint
upon
national
power—and,
if
so,
should
that
constraint
take
the
form
of
an
anti-commandeering
rule?

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