In 1985, only three states had facilities that disposed of low-level radioactive waste.
The Rehnquist Court (1991-1993). Seated, from left to right: Justices John Paul Stevens and Byron R. White, Chief Justice William H. Rehnquist, and Justices Harry Blackmun and Sandra Day O'Connor. Standing, from left to right: David H. Souter, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.
The most severe incentive was the so-called “Take Title” provision. If a state could not provide a disposal facility, the state must take title, or ownership, of waste generated by private parties in the states. Furthermore, the state would be liable for all damages that results from the waste.
“Congress may not simply ‘commandeer,’ or direct, “the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
“The Constitution divides authority between federal and state governments for the protection of individuals.”
“The Tenth Amendment likewise restrains the power of Congress,” she says, “but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology.”
The 10th Amendment has three premises. First, we ask if a power is delegated to Congress? For example, can Congress require New York to take title of the radioactive waste pursuant to the Commerce and Necessary and Proper Clause clauses? If the answer is yes, then Congress can exercise that power. However, the Court answered that question no: however “necessary” it may have been, it was not a “proper” exercise of federal power to require the state legislature to take title of the waste. Second, we ask if the Constitution prohibits the state from taking that action. The Constitution of 1789 listed several prohibitions in Article I, Section 10, for example, states could not enact bills of attainder or ex post facto laws. However, the Constitution says nothing about how New York can, or can’t deal with radioactive waste. Third, the decision of how to deal with the waste is reserved to the state. Congress therefore lacks the power tell the state how to exercise that power.
Justice Stevens dissented. He stated that “The notion that Congress does not have the power to issue ‘a simple command to state governments to implement legislation enacted by Congress’ is incorrect and unsound.” He added that “there is no such limitation in the Constitution.”
That this anticommmandeering principle rests on the meaning of “proper” in the Necessary and Proper Clause: would not become explicit until Printz v. United States (1996), which considered whether Congress could commandeer state executive branch officials. This distinction between “necessary” and “proper” then makes its next appearance in the Affordable Care Act case, NFIB v. Sebelius (2012).
In 1985, only three states had facilities that disposed of low-level radioactive waste. In response to this critical shortage, Congress created incentives for states to pro- vide for waste generated within their borders. The most severe incentive was the so-called “Take Title” provision. If a state could not provide a disposal facility, the state must take title, or ownership, of waste generated by private parties in the state. Furthermore, the state would be liable for all damages that resulted from the waste.
New York challenged the constitutionality of this law. The state acknowledged that the federal government could regulate the interstate waste market. However, New York maintained that Congress could not force the state to take ownership of private radioactive waste.
The Supreme Court agreed. Justice O’Connor wrote the majority opinion.