When it comes to basic constitutional and legal principles, there are very few in the establishment that have even the slightest clue about the relationship between state and federal power. Former New Jersey Governor and EPA administrator Christine Todd Whitman fits that bill, and a recent article by Jonathan H. Adler in the Washington Post takes her to task.

The critique concerns statements Whitman made in an op-ed in Politico concerning Senate Majority Leader Mitch McConnell’s suggestion in an op-ed of his own that states should not cooperate with the EPA on their plan to control greenhouse gas emissions coming from power plants, nor should they implement it themselves.

According to Whitman, McConnell’s suggestion “undermines our government as a whole, as well as our deeply held conviction that the rule of law is the foundation of any stable society.”

This is total bunk, Adler correctly notes, stating the Supreme Court has repeatedly and consistently ruled that states are not bound to enforce federal laws, and the EPA is no exception to this. Furthermore, as former administrator of the EPA, Whitman has no excuse to be ignorant about this. The EPA has attempted to coerce state governments into doing just that numerous times, and failed in court.

Alder, who teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, ultimately calls her claim “ludicrous,” but that is putting it very kindly.


The issue at hand is the legal doctrine of “anti-commandeering.” Based on James Madison’s advice in Federalist #46 to refuse to “cooperate with officers of the Union” as an effective check on federal power, the Supreme Court has repeatedly held that the federal government cannot require the states to help enforce federal acts.

There are four main anti-commandeering cases, spanning over 170 years.

In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

In New York v. United States (1992) the Court held that the regulations in the Low-Level Radioactive Waste Policy Amendment Act of 1985 were coercive and violated the sovereignty of New York, holding that “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.”

Sandra Day O’Connor wrote for the majority in the 6-3 decision:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine.  At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

In Independent Business v. Sebelius (2012), the Court held that the federal government can not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice O’Connor wrote:

“Congress may not simply ‘conscript state [agencies] into the national bureaucratic army,’ and that is what it is attempting to do with the Medicaid expansion.”

Taken together, these four cases firmly establish a legal doctrine holding that the federal government has no authority to force states to participate in implementing or enforcing its acts.

Like most federal bureaucrats, Whitman does not give one whit about what the Constitution says or the undermining of our government, and her loathing for anti-commandeering, a strategy advocated by Founders like James Madison, is indicative of their contempt for true rule of law.

It’s actually rather rich for the former head of an unconstitutional federal agency to lecture anyone about “rule of law.” If we actually adhered to such a concept, the EPA wouldn’t exist at all.

Note: Michael Maharrey and Michael Boldin contributed to this report

TJ Martinell

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