Does Congress violate the Tenth Amendment and the Constitution's division of federal and state authority when it compels states, through the Low-Level Radioactive Waste Policy Amendments Act of 1985's take title provision, to either regulate according to Congress's instructions or take title to and liability for radioactive waste generated within their borders?

Low-level radioactive waste is generated by hospitals, research institutions, industries, and the government and must be isolated for long periods. By 1979, only three sites (Nevada, Washington, and South Carolina) accepted the nation's commercial low-level waste, and when two closed temporarily and South Carolina cut its intake, Congress enacted the Low-Level Radioactive Waste Policy Act of 1980, holding each State responsible for disposing of waste generated within its borders and authorizing regional compacts. With the 1980 Act's deadline approaching, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985, which embodied a compromise proposed by the National Governors' Association: sited States would keep accepting out-of-state waste for seven more years, and unsited States would develop their own disposal capacity by 1992. The Act used three incentives: monetary incentives (a share of surcharges held in an escrow account for States meeting milestones), access incentives (rising surcharges and eventual denial of access to disposal sites for States missing deadlines), and a take title provision requiring a State unable to dispose of its waste by January 1, 1996, to take title to and possession of the waste on request of the generator and be liable for resulting damages. New York did not join a regional compact; it enacted legislation to site its own facility and identified five potential sites in Allegany and Cortland Counties, whose residents opposed the choice. New York and the two counties sued the United States, challenging the Act.

New York and Allegany and Cortland Counties filed suit against the United States in 1990 seeking a declaratory judgment that the Act violated the Tenth and Eleventh Amendments, the Fifth Amendment's Due Process Clause, and the Guarantee Clause of Article IV. Washington, Nevada, and South Carolina intervened as defendants. The District Court dismissed the complaint, 757 F. Supp. 10 (NDNY 1990), and the Court of Appeals for the Second Circuit affirmed, 942 F. 2d 114 (CA2 1991). Petitioners abandoned their due process and Eleventh Amendment claims on the way up, leaving only the Tenth Amendment and Guarantee Clause claims. The Supreme Court granted certiorari in the three consolidated cases and affirmed in part and reversed in part.

(O'Connor, J.)

Yes. The take title provision exceeds Congress's powers and is inconsistent with the Tenth Amendment and the Constitution's federal structure; the monetary and access incentives are valid.

The Tenth Amendment and Congress's enumerated powers are mirror images: a power that is an attribute of state sovereignty reserved by the Tenth Amendment is one the Constitution has not conferred on Congress. Congress may regulate private parties directly and may pre-empt contrary state law, but it may not 'commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.' Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 288 (1981); FERC v. Mississippi, 456 U.S. 742 (1982). The Framers rejected the Articles of Confederation model of legislating on States as States and chose a Constitution that operates directly on individuals. Accountability supports the same line: when Congress compels States to regulate, federal officials may escape the political consequences while state officials bear the blame.

Congress may still encourage state regulation by conditioning federal funds under the Spending Clause (South Dakota v. Dole, 483 U.S. 203 (1987)) or by offering States the choice between regulating according to federal standards and having state law pre-empted. The monetary incentives (conditioned payments from the escrow account) and the access incentives (conditional exercises of the commerce power) fit those categories, leave the choice with the State, and are valid.

The take title provision offers a choice between two unconstitutional options: taking title to and liability for waste, which standing alone would commandeer the States, or regulating according to Congress's instructions, which standing alone would also be beyond Congress's power. A choice between two unconstitutionally coercive techniques is no choice at all. Because the State may not decline to administer the federal program, the provision crosses the line from encouragement to coercion.

The state officials' support for the Act does not cure the defect, because federalism protects individuals and officials cannot consent to an enlargement of congressional power, just as the executive cannot consent to a separation-of-powers violation (Buckley v. Valeo; INS v. Chadha). New York is not estopped from challenging the Act. Assuming the Guarantee Clause claim is justiciable, the remaining incentives do not deny New York a republican form of government. The take title provision is severable, because the rest of the Act remains fully operative and still serves Congress's purpose.

Concurring in part and dissenting in part (White, J., joined by Blackmun and Stevens, JJ.) The 1980 and 1985 Acts were the product of cooperative federalism: state leaders, acting through the National Governors' Association, negotiated the compromise and asked Congress to ratify it, and Congress acted as arbiter among the States. New York participated in and supported the legislation, complied with several of its deadlines, and reaped its benefits, so it should be estopped from challenging the take title provision, and its conduct signified assent to an interstate agreement under Art. I, § 10, cl. 3 (Holmes v. Jennison). The majority answered that state officials' consent cannot ratify an enlargement of congressional power and that New York's prior support does not estop it. The majority's distinction between laws of general applicability and laws directed at States has no support in the Tenth Amendment cases; its 'commandeering' statements in Hodel and FERC were dicta, and under FERC and Garcia the provision threatens neither the State's existence nor its ability to function, particularly because the political process worked fully here. The majority responded that its statements in Hodel and FERC were not innovations but reflected how the Constitution has always been understood. The Court's rule is a formalistic one that Congress can sidestep through spending conditions or threats of pre-emption, and it gives Congress less incentive to defer to state-negotiated solutions. These Justices join Parts IIIA and IIIB but dissent from the rest of the opinion and the judgment striking the take title provision.

Concurring in part and dissenting in part (Stevens, J.) The Constitution enhanced federal power over the States; nothing in its history suggests the Federal Government may not issue commands to the States as it did under the Articles of Confederation. The Tenth Amendment imposes no limit on powers delegated by Article I. The Federal Government already directs state governments in many realms, Congress could command States to supply troops in wartime, and the Court itself issues specific directives to States in interstate disputes, so Congress may command States to implement federal waste standards. The majority answered that the Constitution's text gives federal courts that authority but gives Congress no comparable grant, so such cases do not imply congressional power to mandate state regulation.