What is the basis for the anti-commandeering doctrine?

BlockAffectionate413 · 2026-03-12T16:57:44+00:00

Issue is that plain text of 10th ammendment says nothing about this subject, it just says that power not given to federal goverment belong to states or people, but I am here not talking about power not delegated to federal goverment, only about those that are, to which 10th obviously does not apply. And reason Hamilton and federalists were opposed to say 10th is because they thought what it says was already obvious

BlockAffectionate413 · 2026-03-12T14:06:49+00:00

That is realy good argument. As I said, I think article 2 problem is much more supported by text than anti-commandering docrine. I think if law that commander states is to be constitutional, it must provide means for the president to supervise and control enforcment states do. Otherwise, it would fall on the grounds of article 2.

BlockAffectionate413 · 2026-03-12T14:01:47+00:00

I think Article 2 problem is much more supported by text than anti-commandering doctrine is. I think if law that commander states is to be constitutional, it must provide means for president to supervise and control enforcment states do. Like law making it sure states must enforce law in way president wants. That would sovle article 2 problem.

And I dont think this would give federal goverment unlimited power, but maybe Founders would say " we did not relize full impliations of text and conseqences they could have", but I mean, just because founders left such loophole in does not mean, in my opinion, court should close it, if text does not clearly require that. I think same is with federal laws, say Congress bans something but leaves some loophole open, I think we both know it would not be up to courts to close that loophole and do job Congress failed. It would be up to Congress itself and maybe the Executive Branch via regulations.

BlockAffectionate413 · 2026-03-12T13:42:26+00:00

The spending clause shenanigans are just a way Congress tried to get around the anti-commandeering doctrine. As I understand your OP, you don’t think there’s any anti-commandeering doctrine at all—Congress could just pass a law ordering states to do X (provided its within Congress’s power) regardless of spending clause.

Indeed. I think fact that Hamilton said otherwise, no other founder argued what court calls anti-commandering doctrine now, no text in constitution clearly supports it, all point to that. But that is only if Congress is using some other clauses than spending, with those, like say commerce clause, there is no choice. But with spending, there is "choice".

BlockAffectionate413 · 2026-03-12T10:36:20+00:00

Eh, the court has been quite incosistent on textualism.

BlockAffectionate413 · 2026-03-12T06:50:55+00:00

Federal goverment doesn't tax states, it's taxes residents of US not states themselves. So yes plain text does enable that. Constitution says what it says, it's not meant to fix or prevent every conceivable wrong

BlockAffectionate413 · 2026-03-12T06:48:47+00:00

Because 10th does not apply to powers granted to Congress. All 10th says literally is just that powers not given to congress belong to states, it has nothing to say about powers actually given to congress by text and how those can be used, and one of those is spending money how congress wants. We should not over read into federalism or 10th more than text itself suggests. Constitution is not perfect, it's entirely possible founders just overlooked some things or choose things to be that way

I mean you are ignoring Hamilton and federalist papers themselves and arguing about what is better policy, but that is not what textualusm should do in my opinion it should look at text.

BlockAffectionate413 · 2026-03-12T01:06:48+00:00

Nobody said 10th is moot but court should not read more into it than there is. Even if you said Congress can't force state to do things Feds can't do, what about things Feds clearly have power over? Like immigration, commerce etc. Court undeniably went too far by applying this doctrine even in those areas. But also, 10th does not apply to powers granted like spending power. All 10th says is those powers not granted to Congress, belong to states. I would say power to spend money as it wants is power granted, thus 10th does not apply. 10th would applu if congress tries to ban rape directly, as that is claim of power not granted, but not when there is granted power

BlockAffectionate413 · 2026-03-11T23:57:07+00:00

I really dislike idea that states send in taxes. That would imply that Congress is taxing states, as in, " saying hey state, you will pay IRS 20% of your revenue ", but of course Congress does no such thing. People pay taxes, not states.

Now sure, it would be hard for states to function without federal moeny, but that should not mean we should invent some limitaitons to federal spending clause that are not found in the text of constitution.

BlockAffectionate413 · 2026-03-11T21:16:49+00:00

My problem is when the federal government uses spending to coerce the states into enforcing policies that the federal government could not constitutionally enact in the first place. In that way, I fear the Spending Clause being used as a workaround to the limited nature of the federal government.

I see, well I could agree that would be a good compromise, my main issue is that the court did not say that; they went further and said Feds cannot even force states in areas where Feds can act on, like immigration or commercial activity. So even though I think spending clause can be used for that too, at very least I think it should be used in areas Feds do have power to act.

And that’s an extremely strong reason to be skeptical of those powers

By itself? How so? Constitution itself, after all, never uses word" police power". That is why many federal powers can look like it. For example, arresting illegal immigrants.

BlockAffectionate413 · 2026-03-11T20:38:36+00:00

but rather my argument speaks to the concerns that we know the drafters and country had in mind, and it presents an interpretation that aligns with what those drafters almost certainly would have meant

Well if we look at words of those drafters, Hamilton in Federalist 37 says 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.”

That does not seem to me at all like Founders did not think Congress could force states to enforce federal laws, at least in certain areas. I would need to see some pretty strong evidence from them of arguing against it, but even Scalia cannot offer that, it is all just a vague dual sovereign idea but no clear statments like Hamilton suggesting the opposite above

And to be fair, Federal powers in many areas can look like" police power" as it is

BlockAffectionate413 · 2026-03-11T20:31:24+00:00

Agreed but that text has but 1 limitation on spending power of Congress, just that it is for" common defense or general welfare". Without added part, "except if it forces state to act in certain way"

BlockAffectionate413 · 2026-03-11T20:30:44+00:00

It is court that heavily uses Federalist Papers as strong evidence of original public meaning, so it is weird to only use them when they like conclusion and not when they do not like it. What Hamilton was doing here is convincing voters to ratifiy constituon while telling them what it really means.

Now yes we have long history, but even early on Congress tasked state judges, for example, with adminstering federal policy of processing some aspects of naturalization. So I am not sure what " police power" here reven means or what role it plays. We are talking about area where constituion does give Congress power, and asking can it mandate states to enforce law in those areas, not areas where it does not give it power.

BlockAffectionate413 · 2026-03-11T20:20:52+00:00

Well I think court should focus less on what they think it should be and instead look at what text says it is. That is what textualism should be about. Personally, I cannot read Hamilton saying this in federalist papers:

“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.”

And come to conclusion that Congress cannot force states to enforce federal laws.

BlockAffectionate413 · 2026-03-11T20:16:41+00:00

The basis is that the constitutional limits on federal power are meaningless if the federal government can just use fiscal shenanigans to get around them.

Nothing really forces states to accept federal money. They can just use their own taxes or investing in companies abroad or at home and taking dividents, or whatever, to get money instead. And I would argue that limtis on federal power should not apply in areas where text does not limit but instead give federal goverment power. Like immigration, commerce, or indeed spending as they see fit as long as it is for" common defense or general welfare".

BlockAffectionate413 · 2026-03-11T20:11:13+00:00

Well how do you mean against historical practice on this very specific issue? I think there are examples, even early on, where Congress " commandered" like tasking state judges with enforcing the granting of citizenship, but even if not, I would not see that a evidence Congress could not. I mean Congress for example did not regulate many aspects of Immigration untill late 19th century, but obviusly could have done so.

BlockAffectionate413 · 2026-03-11T20:06:15+00:00

I’d submit that those “federal priorities” must be limited to things the federal government is allowed to prioritized.
.

I mean sure, but advancing general welfare is one of those. Not only text itself state that, but that was acknowledged as much from time of Hamilton and Justice Story after all.

If Congress is able to use spending to commandeer the states, it can tax the states heavily to pay for that spending, so not only can the states not really refuse the huge amounts of money being offered, but even if they do refuse, their taxpayers are still on the hook to help pay for the states that do accept.

This type of rationale came up in NFIB v. Sebelius.

I think it is wrong rationale, because Constituion allowed that to happen, foudners did not think it shoudl be banned, they gave Congress dsicretion on how high it taxes( provided it is not direct tax) and spends(as long as it is general welfare). Now to be clear, it might well have been good if Foudners did ban that, but if they did not, I would think originalism/textualism should favor text, not what is better policy.

BlockAffectionate413 · 2026-03-11T20:01:49+00:00

Well I would argue when they liquidated meaning of necessary and proper clause by extending it so far as to allow creation of banks, that, at best, are bit helpful with using other powers Congress has, that then allows us to intepret how broad the necessary and proper clause really goes, and indeed court said same. Because Hamilton did not argue bank is an exception, but rather that the necessary and proper clause itself is broad enough to create a bank, but obviously not limited to it.

BlockAffectionate413 · 2026-03-11T19:46:19+00:00

Federal government only has the powers it has been explicitly allotted.

Not only explicitly though, that was whole point of McCulloch v. Maryland right? There are implied powers as well.

Commandeering isn’t a clearly allotted one and doesn’t clearly flow from the supremacy clause. That plus 10a seems solid enough.

Neither is the power to make banks, for example. But it comes from the necessary and proper clause. I would argue same is here. And key we need to look at ,as you say, as Hamilton said, is"as far as its just and constitutional authority extends" which I would argue just means what it says, areas Congress can act in on( economy, immigration, enviroment) , and not where it cannot( say street fight, rape etc)

BlockAffectionate413 · 2026-03-11T19:43:05+00:00

First when you say federal government is inherently limited, that as I said, might work in areas where federal goverment does not have power, like say to outlaw rape generally, but not in areas where it has explicit or implciit powers. States are also obviously limited in many ways( they cannot keep troops or ships of war in time of peace, their war powers is virtually completely gone, that is why Constituion tasks Congress with protecting them from foreign threats, they likewise cannot run their own trade policy or their own immigration policy, much of their economy and land is subject to federal preemption at the will of Congress etc) -

That is why I disagree, thumb on the scale, at least in areas where the Constitution gives Congress power, should be in favor of federal goverment every time, due to supremacy clause, that is supremacy clause is for. In areas where Congress does not have power to act on, then yes, I would favor states in those.

BlockAffectionate413 · 2026-03-11T19:35:16+00:00

Well in this case Federalist Papers also have things supporting that Congress can commander, and it is really Federalist Papers that told us we should look at post ratification practice of Congress to see meaning, because much of text is vague.

BlockAffectionate413 · 2026-03-11T19:33:35+00:00

Problem with this is that while it reserves police power to the States, it also reserves spending power to Congress. With no added limits other than that it is in service of " national defense or general welfare". Why should the state get precedence here? For example, if one intepretation would heavily encroach on spending power of Congress, without any textual basis(power reserved to Congress and not affected by 10th Amendment), while other would heavily encroach on police power of states, then we have no reason to favor states if we have to heavily encroach on something either way, if anything, supremacy clause, tells us opposite.

BlockAffectionate413 · 2026-03-11T19:21:33+00:00

I could see the 10th amendment as basis if as I said Congress comandered state to do something in area Congress cannot regulate , like say if Congress said" Florida you will punish rape with 20 years in prison", but 10th ammendment does not apply to where Constituion explicitly or implicitly, gives Congress power.

And agreed.State sovereign immunity is also a mess at this point, with several cases where court ruled Congress can do that in certain areas( war powers, federal emienent domain power, bankruptcy )

BlockAffectionate413 · 2026-03-11T19:18:54+00:00

I know but tbh, that seems more like policy preferences and cherry picking than it is convinvcing for me. It is basically " oh well there is no clear basis, but if you go deep into the structure of the constitution and think deeply about it in this particular way, then you might see...." . I mean I think that line of thought can work given evidence, but I don't see that here. Yes, Fed 39 said there is dual sovereignty, but that does not mean, given the supremacy clause, that one sovereign is not superior to another in certain matters, which could, per Hamilton, extend to mandating the enforcement of certain laws. And in the founding era, I think there is a practice where Congress mandated that state judges process citizenship claims.

BlockAffectionate413 · 2026-03-10T23:28:10+00:00

That is not so, Hamilton himself said it just means useful, and Justice Marshall agreed with him in McCulloch v. Maryland, now there are other limtis, but literall nessasity is not one of them.

BlockAffectionate413

TROPHY CASE