The Volokh Conspiracy
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The Unconstitutional Commandeering of New Hampshire Continues
Judge McCafferty refuses to stay her unconstitutional injunction, and it appears the state AG's office is still failing to raise its strongest constitutional defense.
Last month, a federal judge in New Hampshire issued an injunction purporting to prevent the state from ending its vehicle emission inspection program. The state legislature had repealed the program, effective January 31. No matter, the Judge McCafferty concluded, the state is required to have such a program under the federal Clean Air Act, so the state was enjoined from getting rid of the program.
As I explained in this post, the judge's injunction is unconstitutional, as it forces the state to implement a regulatory program. The judge claimed this outcome was required by the Clean Air Act, but it is well-established, black-letter law that federal law may not require a state to administer or implement a regulatory program. Any such requirement is commandeering, and is unconstitutional under a line of Supreme Court decisions going back over thirty years, including New York v. U.S., Printz v. U.S., and Murphy v. NCAA.
[Indeed, the history goes back farther, as the U.S. Environmental Protection Agency had taken the position in the 1970s that states could be required to implement vehicle emission inspection programs under the Clean Air Act, only for the Solicitor General to concede the point to the Supreme Court, prompting the dismissal of EPA v. Brown. I have a paper retelling this saga, unearthing some of the anti-commandeering principle's forgotten history, that I hope to post on SSRN later this year.]
Given the history, and well-established nature of the anti-commandeering principle, I was surprised to read the judge's order. I was even more surprised to discover that the state AG's office had not raised the anti-commandeering principle in the state's defense. Now I am more surprised still, as this past Wednesday the judge denied the state's motion for a stay, again without any mention of commandeering concerns (and, based on her opinion, it appears the state again failed to raise the argument).
The problem, again, is that Judge McCafferty seems not to understand the nature of our federal system, or the particular requirements of the Clean Air Act. "The Clean Air Act requires New Hampshire's SIP to contain an I/M program," she writes in her latest order. That is true, as far as it goes, in that a state that fails to adopt an adequate SIP [State Implementation Plan], or fails to maintain a SIP approved by the EPA (as is the case here), is out of compliance with the Act. But this does not mean that federal law requires New Hampshire or any other state to have such a program. Rather, should a state fail to submit, maintain, or enforce a compliant SIP, federal aw provides that the state can be subject to various sanctions, such as the loss of some federal funding and the direct imposition of a FIP [Federal Implementation Plan]. What the Clean Air Act does not do is provide a basis for forcing a state to adopt any particular regulatory measure--a point which the federal government has accepted for the past fifty years. [For more on what is and is not commandeering or otherwise coercive under the Clean Air Act, see this article I wrote a few years back with Nate Stewart.]
The Clean Air Act operates this way, in part, so as not to commandeer state governments. Under New York v. United States, it is perfectly okay for the federal government to offer inducements for state cooperation, as well as to threaten adverse consequences for state intransigence. But what federal law cannot do is simply direct states to play the federal government's tune--and yet that is precisely what Judge McCafferty has done. And if there were any question on this point, recall that in Murphy v. NCAA the Supreme Court made abundantly clear that the anti-commandeering principle prevents the federal government from ordering a state not to repeal a state law.
The underlying legal question in this litigation is not a particularly close one. Yet for some reason the state AG's office did not press the point. This has not escaped the notice of other New Hampshire officials, so perhaps things will change on appeal. Until then, the unconstitutional commandeering of New Hampshire will apparently continue.
