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New York v. United States, 505 U.S. 144 (1992) p.212


commerce clause


Faced with a looming shortage of disposal sites for low level radioactive waste in 31 States, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985, which, among other things, imposes upon States, either alone or in "regional compacts" with other States, the obligation to provide for the disposal of waste generated within their borders, and contains three provisions setting forth "incentives" to States to comply with that obligation.

1. The first set of incentives - the monetary incentives - works in three steps: (1) States with disposal sites are authorized to impose a surcharge on radioactive waste received from other States; (2) the Secretary of Energy collects a portion of this surcharge and places it in an escrow account; and (3) States achieving a series of milestones in developing sites receive portions of this fund.

2. The second set of incentives - the access incentives - authorizes sited States and regional compacts gradually to increase the cost of access to their sites, and then to deny access altogether, to waste generated in States that do not meet federal deadlines.

3. The so-called third "incentive" - the take-title provision - specifies that a State or regional compact that fails to provide for the disposal of all internally generated waste by a particular date must, upon the request of the waste's generator or owner, take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the State's failure to promptly take possession.
- government must take title to the waste
- states must follow regulations - enact regulations


Petitioners, New York State and two of its counties, filed this suit against the United States, seeking a declaratory judgment that, inter alia, the three incentives provisions are inconsistent with the Tenth Amendment - which declares that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States" - and with the Guarantee Clause of Article IV, 4 - which directs the United States to "guarantee to every State . . . a Republican Form of Government." The District Court dismissed the complaint, and the Court of Appeals affirmed.


Whether the three incentives are constitutional.


Federal government may not commandeer state government.


The Act's monetary incentives and access incentives provisions are consistent with the Constitution's allocation of power between the Federal and State Governments, but the take-title provision is not because it violates the Tenth Amendment.


1. The first set of incentives are constutional under the Commerce Clause and the Spending CLause (all 9 justices agree on this).
2. The second set of incentives are constitutional under the Commerce Clause (all 9 justices agree on this).
3. The third set of incentives are unconstitutional. - Federal government is not supposed to commandeer the state governments. This causes a loss in accountability in the state government.

Because the Act's take-title provision offers the States a "choice" between the two unconstitutionally coercive alternatives - either accepting ownership of waste or regulating according to Congress' instructions - the provision lies outside Congress' enumerated powers, and is inconsistent with the Tenth Amendment. On the one hand, either forcing the transfer of waste from generators to the States or requiring the States to become liable for the generators' damages would "commandeer" States into the service of federal regulatory purposes. On the other hand, requiring the States to regulate pursuant to Congress' direction would present a simple unconstitutional command to implement legislation enacted by Congress. Thus, the States' "choice" is no choice at all.


The general argument of the dissenters is that it is not for the Court to strike down the regulations that they are enacting to protect themselves.

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