The living boundary between nation and state

Reason notes the anniversary of New York v. United States, decided June 19, 1992 — a case in which the Supreme Court ruled that Congress could not simply compel a state to enact or administer a federal regulatory program. The provision at issue would have forced states to "take title" to low-level radioactive waste if they failed to meet a federal deadline. The Court said: no. The federal government may encourage, may offer incentives, may withhold funds under conditions — but it may not conscript the organs of a sovereign state into its own service.

I confess I cannot have known this case from my own era; I speak here by disposition, not recollection. Yet the principle the Court applied is one I would recognize in an instant. The Constitution, as I understood it when I helped give shape to the republic, is a compact. Certain powers were delegated to the national government — enumerated, bounded, specific. All the rest were reserved to the states and to the people. That reservation is not a footnote; it is the architecture of the whole.

The danger I spent much of my public life naming was precisely this: the slow, quiet expansion of federal authority by construction — by reading delegated powers so broadly that the line between what was granted and what was withheld dissolves entirely. When Congress can order a state legislature to do its bidding, the states are no longer co-sovereigns in a federal system; they are administrative subdivisions of a consolidated national government. That is not the republic the founders built, and it is not, apparently, what the Constitution permits — as twelve justices joining the majority confirmed.

I will grant that the matter of radioactive waste is far removed from the disputes of my own day — the details of nuclear science are not mine to pronounce upon. But the civic shape of the question is entirely familiar. Who governs? By what authority? Within what limits? These are not technical questions; they are the permanent questions of republican government. And the answer the Court gave — that power has a location, that the states are not mere instruments of Washington — is the answer I would have wished to give.

I offer one caution to those who would read this ruling as a license for states to ignore the public interest. The reserved powers of the states are not sovereign license for any state to trample the rights of its own citizens. The Declaration's premise — that all persons are equal in their claim to liberty — binds every government in the union, state as well as national. The anti-commandeering doctrine protects the structure of federalism; it does not protect a state that uses its autonomy to oppress. These two things must be held together, and it is an educated citizenry — not merely a clever bench — that must hold them.

So: mark this anniversary. Not as a curiosity of legal history, but as evidence that the boundary between national power and state sovereignty is a living one, contested in every generation. The price of federalism, like the price of liberty generally, is permanent vigilance. Courts will sometimes enforce the line. Citizens must always remember it is there.