Having explored the doctrinal and constitutional dimensions of the anti-commandeering doctrine, this Part returns to the question posed by West Virginia: whether the Clean Power Plan unconstitutionally commandeers the States due to the fact that, even if the States opt out, the federal plan cannot be implemented without imposing ancillary regulatory burdens on state regulators.
EPA can be broken into three categories: 1) the EPA violated the Clean Air Act [section] 111(d) by establishing emission reduction goals that included reductions "beyond the fence line" of the actual electric generating units; 2) the sources which are already regulated under Clean Air Act [section] 112, which include power plants, cannot also be regulated under 8 111(d); and 3) the Clean Power Plan unconstitutionally commandeers and coerces the States.
(143.) For instance, in its Opening Brief, West Virginia argues that the Clean Power Plan "commandeers the States' exclusive authority to regulate the intrastate generation and transmission of electricity." Brief for Petitioner, supra note 3, at 79 (emphasis added).
United States was whether a provision of the Brady Handgun Violence Prevention Act that temporarily required local law enforcement officers to perform background checks on handgun purchasers unconstitutionally commandeered the States.
As Justice O'Connor noted in New York, the "proper division of authority between the Federal Government and the States" is "perhaps our oldest question of constitutional law." (53) Because the Tenth Amendment "states but a truism that all is retained which has not been surrendered," (54) New York and Printz acknowledged that the answer to whether Congress can commandeer the state legislature or executive officials, respectively, is not readily ascertainable from the Constitution's text.
Because Justice Scalia was probably cognizant of the fact that the Founders were not unanimous in the view that Congress cannot commandeer state executives, he focused his historical arguments in Printz on the "enactments of the early Congresses." (72) The Justice noted that "almost two centuries of apparent congressional avoidance of the practice" was persuasive evidence of the fact that commandeering was unconstitutional.
In other words, one might suppose that the Fifth Amendment authorizes the grand jury to commandeer information--or even other investigatory services--from states for use in its investigations.
A final argument sometimes employed in support of a broad power to commandeer states' secrets emphasizes the federal government's apparent need for the information possessed by the states.
Using statutory reporting requirements, administrative subpoenas, and grand jury subpoenas, it has commandeered states' secrets for use in federal criminal and civil investigations.
1411, 1422-24 (2005) [hereinafter Mikos, Enforcing State Law] (explaining how imposing federal sanctions on persons convicted of state crimes may cause defendants in state cases to resist charges more aggressively, at substantial cost to state prosecutors); see also Mikos, State Taxation, supra note 22, at 258-59 (suggesting that the threat their tax databases could be commandeered would undermine state efforts to monitor and collect proposed state excise taxes on the distribution of marijuana).
1999) (rejecting the city's claim that congressional statutes had commandeered city officials into providing immigration data to the federal law enforcement agencies), aff'g 971 F.
31, 69-72 (2005) (suggesting that Congress could commandeer states to provide uniform criminal history information because of the strong need for such information in federal criminal prosecutions).
