What is the basis for the anti-commandeering doctrine?
This affects the entire country.
We have had few cases where court embraced it, but it seems to me there is not much to support it. For example, Hamilton in Federalist 27 writes that
“by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws.”
And that:
“the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of the laws.”
This sure seems hard to square with hard anti-commandeering doctrine. Now to be sure, Hamilton does note that it goes as far as "its just and constitutional authority extends", so if the anti-commandeering doctrine meant that, say, Congress cannot pass a law that says" Florida will punish rape with 10 years" then yeah, that is not much of federal matter, but in areas where Congress has power, like the economy, immigration, the environment, etc., the Federalist Papers suggest that Congress can very much commander states to enforce federal laws. Likewise, early Congresses commanded state judges to process applications for citizenship, among other things.
Now to be clear, I do not expect current court to reject anti-commandeering doctrine any time soon, but it does seem like doctrine is not well reasoned.
This affects the entire country.
We have had few cases where court embraced it, but it seems to me there is not much to support it. For example, Hamilton in Federalist 27 writes that
“by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws.”
And that:
“the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of the laws.”
This sure seems hard to square with hard anti-commandeering doctrine. Now to be sure, Hamilton does note that it goes as far as "its just and constitutional authority extends", so if the anti-commandeering doctrine meant that, say, Congress cannot pass a law that says" Florida will punish rape with 10 years" then yeah, that is not much of federal matter, but in areas where Congress has power, like the economy, immigration, the environment, etc., the Federalist Papers suggest that Congress can very much commander states to enforce federal laws. Likewise, early Congresses commanded state judges to process applications for citizenship, among other things.
Now to be clear, I do not expect current court to reject anti-commandeering doctrine any time soon, but it does seem like doctrine is not well reasoned.
What is the basis for the anti-commandeering doctrine?
This affects the entire country.
We have had few cases where court embraced it, but it seems to me there is not much to support it. For example, Hamilton in Federalist 27 writes that
“by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each in the execution of its laws.”
And that:
“the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of the laws.”
This sure seems hard to square with hard anti-commandeering doctrine. Now to be sure, Hamilton does note that it goes as far as "its just and constitutional authority extends", so if the anti-commandeering doctrine meant that, say, Congress cannot pass a law that says" Florida will punish rape with 10 years" then yeah, that is not much of federal matter, but in areas where Congress has power, like the economy, immigration, the environment, etc., the Federalist Papers suggest that Congress can very much commander states to enforce federal laws. Likewise, early Congresses commanded state judges to process applications for citizenship, among other things.
Now to be clear, I do not expect current court to reject anti-commandeering doctrine any time soon, but it does seem like doctrine is not well reasoned.
