The Council of State Governments is pleased to have played a role in a recent Supreme Court decision affirming the sovereignty of states and their authority to regulate their own affairs.
In an encouraging move away from recent precedent, relying heavily on the line of argument presented in the council's amicus brief, the court decided 6-to-3 in New York v. United States that the 10th Amendment sets a limit beyond which Congress cannot make demands on states.
In the New York case, a majority of justices, led by Justice Sandra Day O'Connor, emphasized the important federalist principle that even in areas where Congress is supreme, it cannot simply order the states to govern. Certain forms of persuasions amount to an order, the court said, including the disputed take-title provision in the New York case.
We applaud this reasoning and its implications for a strengthening of the federal system of government.
The court's last major ruling on 10th Amendment matters, Garcia v. San Antonio Metropolitan Transit Authority, had a different tone. In it, the court offered no criteria for division of powers between federal and state governments.
Instead, it pointed the governments to the political process. Although disavowing their intent to revisit Garcia, a majority of the justices in the New York case clearly brought about a de facto reopening of its 10th Amendment impact.
In fact, Justice White believes that the decision ends Garcia's stranglehold on 10th Amendment matters. This is good news for state governments, which felt they were left on the playing field without an umpire by the Garcia decision.
For years it has been the consistent position of the Council of State Governments that federal mandates to states must be limited to situations where the Constitution gives the federal government specific authority, as in the interstate commerce clause.
Through its regional conferences, national executive committee, and intergovernmental affairs committee, the council repeatedly has pointed out that the role of the states within the federal system progressively is being undermined by congressional action.
States have labored hard to function within this increasingly restrictive environment and have found ways to carry out unfunded federal mandates, including some that seemed questionable under the 10th Amendment.
Also, working within their own jurisdictions, states have implemented innovative solutions to problems that Congress seemed unable to address.
The New York v. U.S. decision clearly limits the powers of Congress to impose unreasonable mandates upon the states. Most significantly, the decision draws a clear constitutional line without compromising the federal-state partnership in resolving critical national problems.
The issue being tested in the case involved federal enforcement provisions regarding the disposal of low-level radioactive waste.
With the Low-Level Radioactive Waste Policy Amendments Act of 1985, the Congress ordered states and only states, as governments, to provide repositories for low-level waste within state borders or to join in a compact with another state for disposal purposes.
One provision of that act stated that if a state does not dispose waste in-state or fails to enter into an agreement with others to do so, the state government itself must assume full title to and liability for the waste generated within its boundaries.
The court addressed the inequity of this provision head on.
"We conclude that while Congress has substantial power to encourage the states to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability to simply to compel the states to do so," Justice O'Connor wrote.
Wisely, the court did not find fault with or in any way diminish the good faith efforts of those states, including Nevada, South Carolina, and Washington, that have established repositories for low-level radioactive waste.
Moreover, the court upheld the right of current repository states to enter into agreements with other for the disposal of radioactive waste.
"It is apparent that the take-title provision may be severed without doing violence to the rest of the act. The act is still operative and it still serves Congress's objective of encouraging the states to attain local or regional self-sufficiency in the disposal of low-level radioactive waste," the opinion states.
This is clearly a victory for all states, which in the recent past have struggled to achieve the status of equal partners of the federal systems.
At the core of this case is a clear distinction between policy and principal. It is imperative that complex issues such as radioactive waste be confronted, and the states have boldly joined together to address those issues. But the solutions must not impair the vital separation of powers in our federal system.
The Supreme Court decision in the New York case is critical and may mark a turning point in judicial interpretation of the balance of powers in American governance. The Council of State Governments is honored to have played a part, along with other states and territories that filed briefs on behalf of the petitioner, in bringing greater balance to the system.
The council exists to preserve and protect the viability of state governments across the nation. The Supreme Court has reaffirmed the strength and significance of the states. It is time now for the sovereign states and their federal partner to move together toward the solution of our nation's critical problems.
Mr. Sprague is executive director of the Council of State Governments.