In New York v. United States, decided in 1992, the Supreme Court ruled 6-3 that Congress cannot force state governments to carry out federal regulatory programs.1New York v. United States, decided in 1992, established that Congress cannot force state governments to carry out federal regulatory programs. In a 6-3 ruling, the Supreme Court struck down a provision of a federal radioactive waste law that would have required states to take legal ownership of waste they failed to dispose of on schedule. The Court struck down a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 that would have required states to take legal ownership of radioactive waste they failed to dispose of on time. Two other parts of the same law survived. The decision gave constitutional law one of its most important limits on federal power: the anti-commandeering doctrine.
The Law and Why New York Sued
By the early 1980s, only a handful of states hosted disposal sites for low-level radioactive waste, and those states were tired of absorbing the country’s waste while others did nothing. Congress responded with the 1985 Act, which made each state responsible for waste generated within its borders and encouraged regional compacts to share disposal facilities.
The Act pushed states toward compliance with three separate mechanisms. Monetary incentives let host states collect surcharges on imported waste, with a portion held in escrow and paid back to states that hit federal milestones. Access incentives allowed host states to gradually shut non-compliant states out of existing disposal facilities. The third mechanism, the take title provision, required that if a state failed to provide for disposal of its waste by January 1, 1993, it had to take legal ownership of all waste generated within its borders on request of the waste generator, along with liability for any damages the generator suffered from the state’s failure.
New York had neither joined a regional compact nor built its own facility. It challenged the Act on Tenth Amendment grounds, arguing that Congress was treating state legislatures as administrative arms of the federal government.
What the Court Upheld
Justice O’Connor’s majority opinion approved the first two mechanisms and explained why they fit within Congress’s established powers.
The monetary scheme was constitutional under the Spending Clause. Congress can attach conditions to money it distributes, provided states retain a genuine choice about whether to participate. A state that missed its milestones simply lost its share of the escrow funds. Nothing forced it to act.
The access incentives survived under the Commerce Clause. Radioactive waste crossing state lines is interstate commerce, and Congress can authorize host states to restrict access for waste from non-compliant states. The Court described this as conditional preemption: a state could either regulate waste disposal according to federal standards by developing its own capacity, or its private waste generators would face reduced access to out-of-state facilities. The burden of inaction fell on private parties, not on the state government. A state that opted out did not have to spend money, pass laws, or run any program.
Why the Take Title Provision Was Unconstitutional
The take title provision was different in kind. It offered no genuine choice. A state had two options: regulate radioactive waste exactly as Congress demanded, or take legal ownership of the waste and full liability for any harm it caused. Both paths required the state to act as an instrument of federal policy. Neither allowed the state to walk away.
That, the majority held, is what Congress cannot do. Congress may offer incentives, withhold funds, or preempt state law with federal regulation. It may not “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”2The majority opinion held Congress cannot “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
O’Connor grounded the rule in constitutional structure rather than the text of the Tenth Amendment alone. The Constitution divides power between two levels of government and limits the federal government to its enumerated powers. Commandeering violates that structure, and it does so in a way that damages political accountability. When a state regulates because Congress forced it to, voters cannot tell who is responsible for the policy. State officials absorb the political cost of decisions they did not make, and federal officials escape blame for programs they mandated. Each level of government is supposed to answer to voters for its own choices. Commandeering breaks that link.
After striking the take title provision, the Court left the rest of the Act intact. The monetary and access incentives worked independently and remained valid exercises of congressional power.
The Dissent
Justice White, joined by Justices Blackmun and Stevens, argued that the majority had the story backwards. The 1985 Act was not Congress imposing its will on unwilling states. It grew out of years of interstate negotiation, with state leaders asking Congress to ratify a compromise they had reached among themselves. New York had taken part in that process and benefited from it, then challenged the deal when the deadlines came due. White read the take title provision as an enforcement mechanism for an agreement the states had voluntarily made, not a federal command. He also questioned whether the anti-commandeering principle had any real footing in prior case law, arguing that the majority was building a new constitutional rule out of stray language in older opinions.
Justice Stevens wrote separately to make a broader point: he saw nothing in the Constitution prohibiting Congress from issuing direct orders to state governments. He noted that the federal government already regulates state conduct across many areas, from prisons to elections.
How the Doctrine Grew After 1992
The rule announced in New York was the beginning of a line of cases, not the end.
Printz v. United States (1997)
Five years later, the Court extended the doctrine from state legislatures to state executive officials. In a 5-4 decision, it struck down a provision of the Brady Handgun Violence Prevention Act that required local law enforcement officers to conduct background checks on gun buyers. Justice Scalia’s majority opinion held that if Congress cannot commandeer state legislatures, it cannot commandeer state executive officers either. Federal power, he wrote, “would be augmented immeasurably and impermissibly if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States.”3Justice Scalia’s majority opinion in Printz held that federal power “would be augmented immeasurably and impermissibly if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States.”
Murphy v. NCAA (2018)
The doctrine expanded again in 2018. Congress had passed a law prohibiting states from authorizing or licensing sports gambling. The Court struck it down 6-3, holding there is no meaningful difference between ordering a state legislature to pass a law and ordering it not to pass one. Both are commands directed at state governments, and both violate the anti-commandeering principle. The decision opened the door for states to legalize sports betting.
Read together, the three cases mark a clear line. Congress can regulate individuals directly. It can offer states financial incentives. It can preempt state law with federal law. What it cannot do is treat state governments as its agents, whether by ordering them to pass laws, ordering their officers to enforce federal programs, or ordering them not to legislate on a particular subject.