The Two Anti-Commandeering Doctrines That Limit Federal Power Over States

Federal lawmakers routinely assume that because the Supremacy Clause makes federal law the supreme law of the land, Congress can simply order state governments to carry out its policies. The evidence from three decades of Supreme Court jurisprudence contradicts this assumption directly. Under the Tenth Amendment's anti-commandeering doctrine, the federal government possesses no constitutional authority to force state legislatures to pass laws, nor can it conscript state executive officials to enforce federal regulations.[1][6]

The modern architecture of this limitation originates in the 1992 ruling New York v. United States. Congress had passed the Low-Level Radioactive Waste Policy Amendments Act of 1985, which required states to either provide for the disposal of radioactive waste generated within their borders or take title to the waste and assume liability for it. The Court struck down the "take title" provision, establishing the first branch of the doctrine: the federal government cannot commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.[2]

Writing for the majority in 1992, Justice Sandra Day O'Connor articulated the structural boundary. "Congress may not simply 'commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,'" she wrote. The Court clarified that while Congress can use the spending power to offer financial incentives, or threaten to regulate individuals directly under the Commerce Clause, it cannot issue a naked mandate to a state legislature.[1][2]

Five years later, in the 1997 case Printz v. United States, the Court extended this protection to state executive branch officials. The Brady Handgun Violence Prevention Act of 1993 required local chief law enforcement officers to conduct background checks on prospective handgun purchasers. Sheriffs from Montana and Arizona challenged the mandate, arguing that Congress was treating local police as federal employees.[3]

The Court agreed, striking down the background check requirement in a 5-4 decision. Justice Antonin Scalia, writing for the majority, declared that the federal government "may not compel the States to enact or administer a federal regulatory program." Scalia noted that conscripting state officers bypasses the federal executive branch and blurs political accountability, making it impossible for voters to know whether to blame state or federal officials for burdensome regulations.[3]

This dual shield—protecting both state lawmakers and state executives—does not extend to the third branch of state government. State judiciaries are explicitly bound to apply federal law by the text of the Supremacy Clause in Article VI of the Constitution. Because state judges are constitutionally required to hear federal claims and apply federal statutes, the anti-commandeering doctrine provides them no exemption from federal mandates.[4]

The doctrine expanded further in the 2018 case Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act (PASPA). PASPA did not force states to enact a law; rather, it prohibited states from authorizing sports gambling. The Court ruled 7-2 that prohibiting a state from enacting a law is constitutionally identical to commanding a state to enact one, as both dictate what a state legislature may or may not do.[1]

The boundaries of the doctrine continue to be tested by complex federal frameworks. In the 2023 case Haaland v. Brackeen, the Court examined the Indian Child Welfare Act of 1978, which requires state child welfare agencies and state courts to prioritize placing Native American children with Native families. Texas argued this commandeered state agencies, but the Court largely upheld the law, noting that it primarily preempted state law and applied to state courts, which fall outside the doctrine's protection.[5]

The anti-commandeering framework forces the federal government to internalize the costs of its own policies. If Congress wishes to enforce a nationwide regulation, it must fund and deploy its own federal workforce to do so, or it must successfully bribe the states with conditional federal funding. It cannot simply treat the 50 state governments as regional administrative offices of the federal bureaucracy.[6]