Which power can be independently exercised by both the federal government and state government at the same time?

After the American colonies won their freedom from England, the thirteen colonies became thirteen states. The new states decided to work together. Their system of government was described in the Articles of Confederation. In this system, the state governments had most of the power. The Federal Government was very weak. This was very different from the government under the King of England.

The Founding Fathers thought that this system left the nation too weak. They decided to develop a new system of government. They wrote a new document called the Constitution, to replace the Articles of Confederation. The Constitution made a stronger Federal Government. It gave power to both the Federal Government and the state governments. This system is called federalism.

Here are some examples of how powers are shared between the Federal Government and state governments.

Federal Government	State Governments
Make money Declare war Manage foreign relations Oversee trade between states and with other countries	Ratify amendments  Manage public health and safety Oversee trade in the state

In addition, the Federal Government and state governments share these powers:

• Making and enforcing laws
• Making taxes
• Borrowing money

1.

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

2.

Lane Cty. v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869).

3.

Tafflin v. Levitt, 493 U.S. 455, 458 (1990).

4.

See U.S. Const. art. VI, cl. 2.

5.

Gregory, 501 U.S. at 460.

6.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). See generally infra "Internal Federalism Limitations on Congress's Powers."

7.

See U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively . . . .").

8.

Shelby Cty. v. Holder, 133 S. Ct. 2612, 2623 (2013).

9.

See Federalism, Black's Law Dictionary (10th ed. 2014) (defining "federalism" as "the legal relationship and distribution of power . . . between the federal government and the state governments.").

10.

Bond v. United States, 564 U.S. 211, 221 (2011).

11.

See, e.g., United States v. Lopez, 514 U.S. 549, 557 (1995) (noting that the commerce power is "subject to outer limits"). See also infra "Commerce Clause."

12.

See, e.g., Printz v. United States, 521 U.S. 898, 935 (1997) ("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."). See also infra "The "Anti-Commandeering" Doctrine."

13.

See Christopher P. Banks & John C. Blakeman, The U.S. Supreme Court and New Federalism: From the Rehnquist to the Roberts Court 2 (2012).

14.

One commentator has suggested that there may also exist a third category of limitations on Congress's powers: "process limits," wherein requirements such as "the bicameral legislature, the requirement of presidential presentment, and frequent democratic elections" constrain the process—but not the substantive outcome—of congressional action. See Richard Primus, The Limits of Enumeration, 124 Yale L.J. 576, 578 (2014).

15.

See Laurence H. Tribe, American Constitutional Law 794-95 (3d ed. 2000) (distinguishing internal and external limitations on the federal legislative power).

16.

See, e.g., United States v. Dewitt, 76 U.S. (9 Wall.) 41, 43-44 (1869) ("That Congress has power to regulate commerce with foreign nations and among the several States, and with the Indian tribes, the Constitution expressly declares. But this express grant of power to regulate commerce among the States has always been understood as limited by its terms.").

17.

See U.S. Const. art. I, § 8, cl. 17 (granting Congress the power "to exercise exclusive Legislation" over "the Seat of the Government of the United States").

18.

See Primus, supra note 14, at 578.

19.

See, e.g., United States v. Comstock, 560 U.S. 126, 135 (2010) (noting that a "a federal statute, in addition to being authorized by Art. I, § 8, must also 'not [be] prohibited' by the Constitution.") (citing McCulloch v. Maryland, 17 U.S. (Wheat.) 316, 421 (1819)); see also Saenz v. Roe, 526 U.S. 489, 508 (1999) ("[L]egislative powers are, however, limited not only by the scope of the Framers' affirmative delegation, but also by the principle "that they may not be exercised in a way that violates other specific provisions of the Constitution.").

20.

Cf. Primus, supra note 14, at 578 ("External limits, in contrast, are affirmative prohibitions that prevent Congress from doing things that would otherwise be permissible exercises of its powers. Thus, the Fifteenth Amendment prevents Congress from conducting whites-only elections in the District of Columbia, despite Congress's power to govern the District.").

21.

See David J. Barron, A Localist Critique of the New Federalism, 51 Duke L.J. 377, 411 (2001) ("The Court's recent decisions set forth two important federalism-based limits on federal power: external constraints on congressional power and internal ones.").

22.

Id.

23.

See infra "Commerce Clause."

24.

See infra "Congress's Powers Under the Civil War Amendments."

25.

Barron, supra note 21, at 411.

26.

See Arizona v. United States, 567 U.S. 387, 398 (2012).

27.

Erwin Chemerinsky, The Assumptions of Federalism, 58 Stan. L. Rev. 1763, 1768 (2006).

28.

See 469 U.S. 528, 547 (1985).

29.

Id. at 556.

30.

Id.

31.

See Chemerinsky, supra note 27, at 1768-69 (describing the shifting views on the Court concerning federalism).

32.

See 514 U.S. 549, 552 (1995).

33.

See id. at 557 (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)).

34.

See id. at 577 (Kennedy, J., concurring).

35.

Id. at 577-78.

36.

Id.

37.

See generally U.S. Const. art. I, § 8.

38.

See infra "Spending Clause."

39.

See infra "Commerce Clause."

40.

See infra "Treaty Power."

41.

See infra "Congress's Powers Under the Civil War Amendments."

42.

See infra "Necessary and Proper Clause."

43.

U.S. Const. art. I, § 8, cl. 1. Because the Clause empowers Congress to "lay and collect Taxes," the Spending Clause is sometimes called the "Taxing and Spending Clause." See, e.g., David S. Schwartz, A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism, 59 Ariz. L. Rev. 573, 581 (2017). Congress's power to tax may be limited by other provisions of the Constitution that are not directly related to principles of federalism. See United States v. Kahriger, 345 U.S. 22, 28 (1953) ("[T]he constitutional restraints on taxing are few . . . Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity.") (internal citations and quotations omitted).

44.

See 30 Annals of Congress 1059-62 (1817) (Madison Veto Message); Letter from James Madison to Andrew Stevenson (Nov. 27, 1830), reprinted in 2 The Founders' Constitution 453, 456 (Philip B. Kurland & Ralph Lerner eds., 1987).

45.

Alexander Hamilton, Report on Manufacturers (Dec. 5, 1791), reprinted in 2 The Founders' Constitution, supra note 44, at 446.

46.

297 U.S. 1, 66 (1936).

47.

Id.

48.

The Butler Court, while embracing a broad view of the spending power, struck down the challenged law (the Agricultural Adjustment Act of 1933) on Tenth Amendment grounds, concluding that permitting Congress to regulate state police powers indirectly through the Spending Clause would undesirably allow Congress to "become the instrument for total subversion of the governmental powers reserved to the individual states." Id. at 75. The following year, however, the Court reversed course on Butler's Tenth Amendment holding, concluding that Congress, when properly exercising its broad power under the Spending Clause, could apply that power to matters that the states historically controlled. See Helvering v. Davis, 301 U.S. 619, 640 (1937); Steward Mach. Co. v. Davis, 301 U.S. 548, 585 (1937).

49.

See Helvering, 301 U.S. at 640-41; Steward Mach. Co., 301 U.S. at 585-87.

50.

See South Dakota v. Dole, 483 U.S. 203, 207 (1987).

51.

See Butler, 297 U.S. at 66.

52.

Madison v. Virginia, 474 F.3d 118, 125 (4th Cir. 2006).

53.

See U.S. Const. art. I, § 8, cl. 1.

54.

See Helvering,301 U.S. at 640 (noting that the Spending Clause's general welfare limitation requires a line being "drawn between one welfare and another, between particular and general."). See also John C. Eastman, Restoring the "General" to the General Welfare Clause, 4 Chap. L. Rev. 63, 72 (2001) ("But the Spending Clause also contains an explicit limitation, albeit one that is not readily apparent to the modern reader. Spending had to be for the 'general,' or national welfare, not for regional or local welfare.").

55.

Indeed, in Buckley v. Valeo, the Court went so far as to describe the view that the General Welfare Clause serves as a limitation on congressional power as being "erroneous[]," noting that the concept of general welfare is a "a grant of power, the scope of which is quite expansive." See 424 U.S. 1, 90 (1976) (per curiam).

56.

South Dakota v. Dole, 483 U.S. 203, 207 (1987); Buckley, 424 U.S. at 90 ("It is for Congress to decide which expenditures will promote the general welfare"); United States v. Kahriger, 345 U.S. 22, 28 (1953) (holding that the remedy for Congress exceeding its power under the Spending Clause is in "the hands of Congress, not the courts.").

57.

Helvering, 301 U.S. at 640.

58.

Id. at 641.

59.

Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 674 (2012) (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

60.

See Buckley, 424 U.S. at 91.

61.

See infra "Limits on the Spending Power."

62.

See infra "Limits on the Spending Power."

63.

See Erwin Chemerinsky, Constitutional Law: Principles and Policies 174 (1997) (arguing that of the eighteen clauses enumerated in Article I, Section 8 detailing Congress's powers, the "most important" is the Commerce Clause); Edward S. Corwin, The Constitution and What it Means Today 54 (13th ed. 1973) ("[T]he commerce clause comprises, however, not only the direct source of the most important peace-time powers of the National Government; it is also, except for the due process of law clause of Amendment XIV, the most important basis for judicial review in limitation of State power.").

64.

U.S. Const. art. I, § 8, cl. 3.

65.

See, e.g.,Paul Boudreaux, A Case for Recognizing Unenumerated Powers of Congress, 9 N.Y.U. J. Legis. & Pub. Pol'y 551, 555 (2006) ("Th[e] authority to regulate interstate commerce . . . forms the constitutional basis for nearly all modern social legislation, from the civil rights laws, to employment statutes, to environmental legislation.").

66.

Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (Roberts, C.J.) ("The path of our Commerce Clause decisions has not always run smooth.")

67.

See United States v. E.C. Knight Co., 156 U.S. 1, 13-14 (1895).

68.

See Hammer v. Dagenhart, 247 U.S. 251, 276 (1918), overruled by United States v. Darby, 312 U.S. 100, 117 (1941).

69.

317 U.S. 111, 127-29 (1942).

70.

Id. at 129.

71.

See Boudreaux, supra note 65, at 555 ("Th[e] authority to regulate interstate commerce . . . forms the constitutional basis for nearly all modern social legislation, from the civil rights laws, to employment statutes, to environmental legislation.").

72.

United States v. Glover, 842 F. Supp. 1327, 1332 (D. Kan. 1994) ("Congress generally relies upon the Commerce Clause to enact federal criminal laws.").

73.

See Stephen R. McAllister, Is There A Judicially Enforceable Limit to Congressional Power Under the Commerce Clause?, 44 U. Kan. L. Rev. 217, 224-25 (1996) ("[T]he Commerce Clause, not the Fourteenth Amendment, was deemed the primary source of constitutional authority supporting the major civil rights statutes of the 1960s.").

74.

See Blake Hudson, Reconstituting Land-Use Federalism to Address Transitory and Perpetual Disasters: The Bimodal Federalism Framework, 2011 B.Y.U. L. Rev. 1991, 2044 (2011) ("In the United States, the Commerce Clause is the primary constitutional provision under which most environmental legislation is passed.").

75.

See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 558 (2012) (Roberts, C.J.) & id. at 649-50 (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting) (collectively concluding that a requirement that an individual purchase health insurance exceeded Congress's authority under the Commerce Clause); United States v. Morrison, 529 U.S. 598, 617 (2000) (holding that Congress lacked the authority under the Commerce Clause to create a federal civil remedy for the victims of gender-motivated violence); United States v. Lopez, 514 U.S. 549, 558 (1995) (invalidating a law prohibiting possessing a gun within 1,000 feet of a school).

76.

See Lopez, 514 U.S. at 558.

77.

See id.

78.

Id. See also Pierce Cty. v. Guillen, 537 U.S. 129, 146-47 (2003) (upholding, as a proper exercise of Congress's Commerce Clause authority, a federal statute that protected certain highway safety information from evidentiary discovery and admission, and, in so doing, aimed to "improv[e] safety in the channels of commerce and increas[e] protection for the instrumentalities of interstate commerce").

79.

See United States v. Faasse, 265 F.3d 475, 490 (6th Cir. 2001).

80.

See United States v. Darby, 312 U.S. 100, 114 (1941).

81.

Perez v. United States, 402 U.S. 146, 150 (1971).

82.

Darby,312 U.S. at 112-14.

83.

Caminetti v. United States, 242 U.S. 470, 491-92 (1917).

84.

Champion v. Ames (The Lottery Case), 188 U.S. 321, 354-55 (1903).

85.

United States v. Patton, 451 F.3d 615, 621 (10th Cir. 2006).

86.

See United States v. Lopez, 514 U.S. 549, 558 (1995).

87.

See Mitchell v. H.B. Zachry Co., 362 U.S. 310, 323 (1960) (describing railroads, truck companies and airlines as instrumentalities of interstate commerce).

88.

See Patton,451 F.3d at 621.

89.

See Lopez, 514 U.S. at 558 (emphasis added).

90.

Perez v. United States, 402 U.S. 146, 150 (1971).

91.

Hous., E. & W. Tex. Ry. Co. v. United States (The Shreveport Rate Cases),234 U.S. 342, 351-53 (1914). See also S. Ry. Co. v. United States, 222 U.S. 20, 56 (1911) (upholding federal safety regulations as applied to trains and railroad cars travelling intrastate on a railroad line because the "absence of appropriate safety appliances" from the intrastate trains and cars was "a menace" to those moving in interstate commerce).

92.

United States v. Coombs, 37 U.S. (12 Pet.) 72, 78 (1838).

93.

See Patton,451 F.3d at 622; cf. Lopez, 514 U.S. at 559 (rejecting the argument that prohibiting the possession of a gun near a school could "be justified as a regulation by which Congress has sought to protect . . . a thing in interstate commerce").

94.

Lopez,514 U.S. at 558-59.

95.

See Patton,451 F.3d at 622.

96.

Gonzales v. Raich, 545 U.S. 1, 17 (2005).

97.

See id. at 22.

98.

See Lopez,514 U.S. at 559-62.

99.

Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1068-69 (D.C. Cir. 2003).

100.

See Lopez,514 U.S. at 561-67.

101.

529 U.S. 598, 614 (2000) ("The existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.").

102.

Id. at 613.

103.

Id. at 617.

104.

See Gonzales v. Raich, 545 U.S. 1, 25-26 (2005) (quoting Webster's Third New International Dictionary 720 (1966)).

105.

See Lopez,514 U.S. at 560.

106.

See 545 U.S. at 16.

107.

See 567 U.S. 519, 558 (2012) (opinion of Roberts, C.J.) ("The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to 'regulate Commerce.'"); see also id. at 649 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) ("[O]ne does not regulate commerce that does not exist by compelling its existence.").

108.

See id. at 539 (majority opinion).

109.

Id. at 549 (opinion of Roberts, C.J.). In so viewing the individual mandate, Chief Justice Roberts rejected the argument that there is no distinction between activity and inactivity for purposes of determining whether an individual is having a substantial effect on interstate commerce, as the commerce power concerns the power to regulate classes of activities, not individuals. Id. at 555-56.

110.

Id. at 551 (citing Lopez,514 U.S. at 560; Perez v. United States, 402 U.S. 146, 154 (1971); Wickard v. Filburn, 317 U.S. 111, 125 (1942); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

111.

Id. at 551.

112.

Id. at 557 ("The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. But we have never permitted Congress to anticipate that activity itself to regulate individuals not currently engaged in commerce.").

113.

See id. at 574 (majority opinion) ("The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.").

114.

Id. at 652-53 (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

115.

See, e.g.,United States v. Robbins, 729 F.3d 131, 135 (2d Cir. 2013) ("It is not clear whether anything said about the Commerce Clause in NFIB's primary opinion—that of Chief Justice Roberts—is more than dicta, since Part III-A of the Chief Justice's opinion was not joined by any other Justice and, at least arguably, discussed a bypassed alternative, rather than a necessary step, in the Court's decision to uphold the Act."); United States v. Henry, 688 F.3d 637, 641 n.5 (9th Cir. 2012) ("There has been considerable debate about whether the statements about the Commerce Clause [in NFIB] are dicta or binding precedent.").

116.

See, e.g.,United States v. McLean, 702 F. App'x 81, 87-88 (3d Cir. 2017) ("NFIB concerned Congress' authority to compel commercial activity, not its ability to proscribe attempted or planned criminal activity."); Mason v. Warden, Fort Dix FCI, 611 F. App'x 50, 53 (3d Cir. 2015)("Contrary to Mason's contention, that Commerce Clause ruling does not undermine his Hobbs Act convictions, for neither the Hobbs Act itself, nor the facts of his case, involve compelling commerce.").

117.

This report periodically references decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this report (e.g., the Fourth Circuit) refer to the U.S. Court of Appeals for that particular circuit.

118.

Liberty Univ., Inc. v. Lew, 733 F.3d 72, 93 (4th Cir. 2013).

119.

Id.

120.

Id. (quoting Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 552 (2012) (opinion of Roberts, C.J.)).

121.

See 700 F.3d 50, 58 (1st Cir. 2012).

122.

Id. For other unsuccessful challenges to 18 U.S.C. § 922(g) based on NFIB, see United States v. Bron, 709 F. App'x 551, 554 (11th Cir. 2017); United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013).

123.

See 729 F.3d 131, 135-36 (2d Cir. 2013).

124.

Id. at 136. In addition, the Second Circuit noted that SORNA was properly applied to the defendant in Robbins, as the registration requirement "Robbins himself failed to meet was triggered by activity: his change of residence and travel across state lines." Id. For other unsuccessful challenges to SORNA based on NFIB,see, e.g., Bron, 709 F. App'x at 554; United States v. Sullivan, 797 F.3d 623, 632 (9th Cir. 2015); United States v. White, 782 F.3d 1118, 1125 (10th Cir. 2015); United States v. Howell, 557 F. App'x 579, 580 (7th Cir. 2014); United States v. Anderson, 771 F.3d 1064, 1070 (8th Cir. 2014).

Another federal statute that has been the subject of several unsuccessful Commerce Clause challenges based on NFIB'sinactivity principle is 18 U.S.C. § 2251, which, among other things, prohibits the production of child pornography. See, e.g., United States v. Humphrey, 845 F.3d 1320, 1323 (10th Cir. 2017) (upholding a federal law prohibiting the production of child pornography because producing pornography made the defendant "akin to the farmer in Wickard, not the uninsured individuals in NFIB"); Sullivan, 797 F.3d at 632 (similar); United States v. Parton, 749 F.3d 1329, 1331 (11th Cir. 2014) (similar).

125.

Missouri v. Holland, 252 U.S. 416 (1920).

126.

Seeid.at 432.

127.

Id.

128.

Id.

129.

Since Holland, reviewing courts have deemed a number of federal statutes implementing treaty requirements constitutionally permissible under the Necessary and Proper Clause. See, e.g., United States v. Ferreira, 275 F.3d 1020, 1027-28 (11th Cir. 2001) (upholding Hostage Taking Act, 18 U.S.C. § 1203, as necessary and proper to implement the International Convention Against the Taking of Hostages); United States v. Wang Kun Lue, 134 F.3d 79, 84 (2d Cir. 1998) (same). See also United States v. Lara, 541 U.S. 193, 200 (2004) (citing to the Indian Commerce Clause and Treaty Clause as providing Congress with power to legislate on Indian tribe issues, and stating that "treaties . . . can authorize Congress to deal with matters with which otherwise Congress could not deal") (internal quotations omitted).

130.

See generally Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 Colum. L. Rev. 403 (2003). For criticism of the Supreme Court's decision in Missouri v. Holland, and arguments that the treaty power may not expand Congress's legislative power, see Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005).

131.

134 S. Ct. 2077, 2087 (2014).

132.

18 U.S.C. § 229.

133.

134 S. Ct. at 2083.

134.

Id. at 2087.

135.

Id.

136.

Id.

137.

See id. at 2098-2102 (Scalia, J., concurring in the judgment).

138.

Id. at 2087 (majority opinion).

139.

Id. at 2088. For further discussion of the Bond ruling, see CRS Report R42968, Bond v. United States: Validity and Construction of the Federal Chemical Weapons Statute, by Charles Doyle.

140.

In the aftermath of Bond, the Ninth Circuit rejected a constitutional challenge to the CWCIA, finding that the statute, when applied to a crime that was not "purely local" in nature,was "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power." United States v. Fries, 781 F.3d 1137, 1148 (9th Cir. 2015). See also United States v. Mikhel, 889 F.3d 1003, 1023-24 (9th Cir. 2018) (upholding Hostage Taking Act under the treaty power and noting that "[a]lthough this broad reading of the Necessary and Proper Clause has been criticized and debated . . . the Supreme Court has never undertaken to clarify or correct our understanding. We are thus bound by our prior cases.") (citing United States v. Wang Kun Lue, 134 F.3d 79, 82 (2d Cir. 1998)).

141.

Bond, 134 S. Ct. at 2091.

142.

This shorthand reflects the fact that the three amendments were ratified between 1865 and 1870 in the wake of the Union's victory in the Civil War. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976) (using the term "Civil War Amendments"); Oregon v. Mitchell, 400 U.S. 112, 126 (1970) (same); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 223 (2009) (Thomas, J., concurring in part and dissenting in part) (using the term "Reconstruction Amendments"). It should be noted, however, that these three amendments were neither drafted nor enacted as a package. See generally John E. Nowak, Federalism and the Civil War Amendments, 23 Ohio N.U. L. Rev. 1209, 1211-15 (1997) (overviewing history of the passage and ratification of the Civil War Amendments).

143.

See Ex parte Virginia, 100 U.S. 339, 344-45 (1879) ("One great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States.").

144.

U.S. Const. amend. XIII, § 1 ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.").

145.

Id. amend. XIV, § 1.

146.

Id. amend. XV, § 1.

147.

See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996) ("[T]he Fourteenth Amendment, by expanding federal power at the expense of state autonomy . . . fundamentally altered the balance of state and federal power struck by the Constitution."); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989) ("The Civil War Amendments themselves worked a dramatic change in the balance between congressional and state power over matters of race."); Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1195 (1991) ("[The Civil War Amendments] radically transform[ed] the nature of American federalism."). One such fundamental change is that, prior to the Civil War Amendments, the Supreme Court had held that the protections in the Bill of Rights did not apply to the actions of the states. See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243, 247 (1833) (holding that the Fifth Amendment does not apply to the states). Following the enactment of the Fourteenth Amendment, however, the Court has held that many of the protections of the Bill of Rights are applicable to the states. See McDonald v. City of Chicago, 561 U.S. 742, 765 n.13, (2010) (noting the few provisions of the Bill of Rights that the Court has not held to be incorporated against the states).

148.

Ex parte Virginia, 100 U.S. at 346. See also id. at 345 ("[The Civil War Amendments] were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress.").

149.

U.S. Const. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2.

150.

City of Boerne v. Flores, 521 U.S. 507, 518 (1997).

151.

See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-43 (1968) (holding that statute banning "racial discrimination, private as well as public, in the sale or rental of property" was "a valid exercise of the power of Congress to enforce the Thirteenth Amendment"); The Civil Rights Cases, 109 U.S. 3, 21 (1883) ("[Under the Thirteenth Amendment,] Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery, with all its badges and incidents . . . .").

152.

See Oregon v. Mitchell, 400 U.S. 112, 118 (1970) (opinion of Black, J.) ("Congress, in the exercise of its power to enforce the Fourteenth and Fifteenth Amendments, can prohibit the use of literacy tests or other devices used to discriminate against voters on account of their race in both state and federal elections."); accord Katzenbach v. Morgan, 384 U.S. 641, 649 (1966).

153.

See Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 50-53 (1959) (holding that use of literacy test for voters, if "fair on its face" and "neutral[ly]" applied, is constitutional).

154.

City of Boerne, 521 U.S. at 518 (quoting Mitchell, 400 U.S. at 128 (opinion of Black, J.)).

155.

Likely because of its broad, general guarantee of "due process" and "equal protection of the laws," see U.S. Const. amend. XIV, § 1, issues concerning Congress's power under the Fourteenth Amendment arise more frequently than the other two Civil War Amendments.

156.

See United States v. Morrison, 529 U.S. 598, 621 (2000) ("The language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. . . . Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action."). The Fifteenth Amendment, too, is also generally understood to require state action. See, e.g., Smith v. Allwright, 321 U.S. 649, 664 (1944) (holding that racial discrimination by political party in primary elections constitutes "state action within the meaning of the Fifteenth Amendment"). But see Note, The Strange Career of 'State Action' Under the Fifteenth Amendment, 74 Yale L.J. 1448, 1449 (1965) (noting that early Supreme Court cases "construe[d] congressional enforcement power under the fifteenth amendment to reach private individuals"). Notably, the Thirteenth Amendment lacks a state action requirement. See Griffin v. Breckenridge, 403 U.S. 88, 105 (1971) (upholding, under the Thirteen Amendment, federal cause of action for victims of racially discriminatory conspiracies committed by private citizens).

157.

See City of Boerne, 521 U.S. at 519 ("The design of the [Fourteenth] Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States."). In addition, when legislating under the Fourteenth and Fifteenth Amendments, Congress may not violate "the fundamental principle of equal sovereignty" by treating states unequally without sufficient reason. See Shelby Cty. v. Holder, 570 U.S. 529, 542 (2013). This equal sovereignty limit is explained in more detail in a separate section of this report.See infra "Equal Sovereignty Doctrine."

158.

Coleman v. Court of Appeals of Md., 566 U.S. 30, 36 (2012) (plurality opinion) (quoting Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639 (1999)).

159.

City of Boerne, 521 U.S. at 508.

160.

See U.S. Const. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge . . . .") (emphasis added).

161.

Shelley v. Kraemer, 334 U.S. 1, 13 (1948).

162.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982).

163.

Id.

164.

See 109 U.S. 3, 11 ("Individual invasion of individual rights is not the subject-matter of the amendment."); id. at 13 ("[U]ntil some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity . . . ."). As a result of the state action limit on its Fourteenth Amendment powers, Congress has instead relied on its Commerce Clause powers to prohibit discrimination in public accommodations. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964) (holding that Congress has authority to prohibit racial discrimination in hotels under the Commerce Clause); Katzenbach v. McClung, 379 U.S. 294, 304 (1964) (holding that Congress has power to prohibit racial discrimination in restaurants under the Commerce Clause). See generally supra "Commerce Clause."

165.

529 U.S. 598, 626 (2000).

166.

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).

167.

Lugar, 457 U.S. at 939.

168.

Id. at 937.

169.

United States v. Price, 383 U.S. 787, 794 (1966).

170.

Lugar, 457 U.S. at 939.

171.

See, e.g., Ex parte Virginia, 100 U.S. 339, 346 (1879) ("Congress is empowered to enforce [the Fourteenth Amendment], and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial."); United States v. Raines, 362 U.S. 17, 25 (1960) ("[D]iscrimination by state officials, within the course of their official duties . . . is certainly, a[] 'state action' and the clearest form of it . . . .").

172.

See Tennessee v. Lane, 541 U.S. 509, 520 (2004) (distinguishing between "appropriate remedial" legislation enforcing the Fourteenth Amendment and unconstitutional "substantive redefinition" of the Amendment).

173.

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000).

174.

City of Boerne v. Flores, 521 U.S. 507, 519 (1997) ("[Congress] has been given the power "to enforce" [the Fourteenth Amendment,] not the power to determine what constitutes a constitutional violation.").

175.

Id. at 511.

176.

Id. at 516 (quoting 42 U.S.C. § 2000bb-1).

177.

494 U.S. 872, 880-85 (1990).

178.

Id. at 874, 890.

179.

Boerne, 521 U.S. at 519.

180.

Id. at 520.

181.

Id. at 530-34.

182.

Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001).

183.

Id. at 368. See also Coleman v. Court of Appeals of Md., 566 U.S. 30, 37 (2012) (plurality opinion) (holding that remedial legislation requires "evidence of a pattern of state constitutional violations").

184.

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 86 (2000) (quoting Boerne, 521 U.S. at 532 (1997)).

185.

See infra "The Eleventh Amendment and State Sovereign Immunity" (explaining constitutional basis and scope of state sovereign immunity).

186.

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996).

187.

See, e.g.,Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (permitting congressional abrogation of state sovereign immunity pursuant to Section Five of the Fourteenth Amendment). See also infra "The Eleventh Amendment and State Sovereign Immunity."

188.

See, e.g., Coleman, 566 U.S. 30 (holding abrogation of immunity invalid by a 5-4 decision with two separate concurrences); Tennessee v. Lane, 541 U.S. 509 (2004) (holding abrogation of immunity valid by a 5-4 decision with two separate concurring opinions and three separate dissenting opinions); Garrett, 531 U.S. 356 (holding attempted abrogation of immunity invalid by a 5-4 decision).

189.

See Coleman, 566 U.S. at 44 (Scalia, J., dissenting) ("[T]he varying outcomes we have arrived at under the 'congruence and proportionality' test make no sense.").

190.

Garrett, 531 U.S. at 360-61.

191.

Lane, 541 U.S. at 533-34.

192.

Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 725 (2003).

193.

Coleman, 566 U.S. at 33-34.

194.

Compare Garrett, 531 U.S. at 370 (finding that "Congress assembled only . . . minimal evidence of unconstitutional state discrimination in employment against the disabled") with id. at 377-79 (Breyer, J., dissenting) (finding that "Congress compiled a vast legislative record documenting 'massive, society-wide discrimination' against persons with disabilities" including "roughly 300 examples of discrimination by state governments themselves") (quoting S. Rep. No. 101-116, pp. 8-9 (1989)).

195.

See Lane, 541 U.S. at 525-28.

196.

531 U.S. at 369.

197.

Hibbs, 538 U.S. at 728.

198.

See Garrett, 531 U.S. at 366-67.

199.

See Lane, 541 U.S. at 522-23.

200.

See City of Boerne v. Flores, 521 U.S. 507, 530 (1997) ("Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.").

201.

541 U.S. at 532.

202.

521 U.S. at 534-35; see also id. at 532 ("Sweeping coverage ensures [RFRA's] intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter.").

203.

Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 728 (2003) (defining "prophylactic legislation" as a law that "proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct").

204.

See United States v. Georgia, 546 U.S. 151, 159 (2006) (concluding that Congress may validly abrogate state sovereign immunity to the extent a law merely "creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment").

205.

See, e.g., Lane, 541 U.S. at 530 (finding Title II of the ADA an "appropriate response" to a "history and pattern of unequal treatment" of persons with disabilities).

206.

See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966) (approving "stringent new remedies" to "banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century"), abrogated in part by Shelby Cty. v. Holder, 570 U.S. 529 (2013); Oregon v. Mitchell, 400 U.S. 112, 132 (1970) (opinion of Black, J.) (relying on the "long history of the discriminatory use of literacy tests to disfranchise voters on account of their race" to uphold congressional ban on literacy tests for voting).

207.

See, e.g., Lane, 541 U.S. at 522-23 (observing that Title II of the ADA combats both "irrational disability discrimination" and rights, like access to the courts under the Due Process Clause, that are "subject to more searching judicial review").

208.

Compare Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000) (holding that Congress's purported abrogation under the Age Discrimination in Employment Act was invalid in part because "[s]tates may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest"), with Hibbs, 538 U.S. at 728 (holding that Congress validly abrogated state sovereign immunity pursuant to FMLA family-care leave provisions in part because "statutory classifications that distinguish between males and females are subject to heightened scrutiny").

209.

Coleman v. Court of Appeals of Md., 566 U.S. 30, 37 (2012).

210.

See, e.g., City of Boerne v. Flores, 521 U.S. 507, 535 (1997) ("[RFRA] is broader than is appropriate if the goal is to prevent and remedy constitutional violations.").

211.

U.S. Const. art. I, § 8, cl. 18.

212.

Although "Necessary and Proper Clause" is the modern term for this constitutional provision, historically it was often called the "Sweeping Clause." See, e.g., The Federalist No. 33 (Alexander Hamilton); John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045, 1132 & n. 47 (2014) ("[The Framers] referred to the last clause of Article I, Section 8 as the 'Sweeping Clause.'").

213.

See Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234, 247 (1960) ("The [Necessary and Proper Clause] is not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out the specifically granted 'foregoing' powers of [Article I, section 8] 'and all other Powers vested by this Constitution."). But see Alison L. LaCroix, The Shadow Powers of Article I, 123 Yale L.J. 2044, 2062-67 (2014) (arguing that the Necessary and Proper Clause is most accurately characterized as a separate enumerated power, even if "it is auxiliary rather than primary").

214.

See, e.g., Gonzales v. Raich, 545 U.S. 1, 5 (2005) (addressing whether the prohibition of local use and cultivation of marijuana was necessary and proper to Congress's power to regulate interstate commerce); Missouri v. Holland, 252 U.S. 416, 432 (1920) ("If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.").

215.

See, e.g., McCulloch v. Maryland, 17 U.S. 316, 407 (1819) (considering whether Congress's powers "to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies" implied the power to establish a national bank under the Necessary and Proper Clause).

216.

See, e.g., United States v. Comstock, 560 U.S. 126, 148 (2010) (considering whether "the enumerated power that justifies the creation of a federal criminal statute" further justifies indefinite civil commitment of a federal prisoner after the expiration of their criminal sentence).

217.

See J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. Ill. L. Rev. 581, 584 (2002) ("Because the Necessary and Proper Clause delineates the outer boundary of congressional authority, interpretation of that provision also permits identification of reserved state powers."); Stephen Gardbaum, The Federalism Implications of Flores, 39 Wm. & Mary L. Rev. 665, 682 (1998)("[T]he Necessary and Proper Clause . . . operates at the boundaries of federal and reserved state power . . . .").

218.

LaCroix, supra note 213, at 2061 (describing McCulloch as "the lodestar for understanding the [Necessary and Proper] clause"); Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 814 (1996) ("Analysis of the Necessary and Proper Clause has historically begun and ended with McCulloch . . . .").

219.

McCulloch, 17 U.S. at 401.

220.

Id. at 406-07.

221.

Id. at 414-17.

222.

Id. at 418.

223.

Id. at 421.

224.

United States v. Comstock, 560 U.S. 126, 156 (2010) (Alito, J., concurring in the judgment).

225.

See U.S. Const. art. I, § 8, cls. 6, 10; id. art. III, § 3, cl. 2.

226.

See, e.g., 18 U.S.C. §§ 1341-1351 (mail fraud and wire fraud); id. §§ 1951-1968 (racketeering); 21 U.S.C. § 844 (drug possession); 27 U.S.C. § 7201 (tax evasion).

227.

See Comstock, 560 U.S. at 156 (Alito, J., concurring in the judgment) ("Most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct.").

228.

Id. at 134 (opinion of the Court) (citations omitted).

229.

Id. at 130-31. For a fuller analysis of the Comstock decision, see CRS Report R40958, United States v. Comstock: Legislative Authority Under the Necessary and Proper Clause, by Charles Doyle.

230.

See 18 U.S.C. § 4247(a)(6) (defining a "sexually dangerous person" as one who "suffers from a serious mental illness . . . as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released").

231.

529 U.S. 598, 617 (2000) (holding that Congress may not regulate "noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce").

232.

Notably, the civil commitment provisions applied to any person in federal custody, regardless of whether his conviction was for a sex-related crime or not. See 18 U.S.C. §§ 4247(a)(5), 4248(a). In practice, however, many of the individuals committed under the statute were in federal custody for a sex crime that fell within federal jurisdiction, such as possession of child pornography that "has been shipped or transported in or affecting interstate or foreign commerce . . . by any means including by computer." See id. § 2252(a)(2); Comstock, 560 U.S. at 131 ("Three of the five [petitioners] had previously pleaded guilty in federal court to possession of child pornography . . . .").

233.

Comstock, 560 U.S. at 149.

234.

Id.

235.

570 U.S. 387 (2013).

236.

See 34 U.S.C. §§ 20911-20932; 18 U.S.C. § 2250(a).

237.

Kebodeaux, 570 U.S. at 389-90.

238.

Id. at 390.

239.

U.S. Const. art. I, § 8, cl. 14; Kebodeaux, 570 U.S. at 399.

240.

Kebodeaux, 570 U.S. at 391.

241.

Id. at 393.

242.

Id. at 393-94.

243.

See id. at 395-99.

244.

See supra "Commerce Clause."

245.

United States v. Thompson, 811 F.3d 717, 723 (5th Cir. 2016) (collecting cases). See also, e.g., United States v. Brune, 767 F.3d 1009, 1017 (10th Cir. 2014) (rejecting as-applied challenge to SORNA); United States v. Coppock, 765 F.3d 921, 925 (8th Cir. 2014) (same); United States v. Elk Shoulder, 738 F.3d 948, 957-59 (9th Cir. 2013) (same); United States v. Carel, 668 F.3d 1211, 1218-24 (10th Cir. 2011) (same).

246.

See, e.g., United States v. Mikhel, 889 F.3d 1003, 1023-24 (9th Cir. 2018) (upholding Hostage Taking Act as necessary and proper to Congress's Treaty Power); United States v. Shibin, 722 F.3d 233, 247 (4th Cir. 2013) (same); United States v. Ferreira, 275 F.3d 1020, 1027-28 (11th Cir. 2001) (same).

247.

See Artis v. District of Columbia, 138 S. Ct. 594, 606-07 (2018) (rejecting argument that tolling the statute of limitations for any state-law claim joined with a claim in federal court under supplemental jurisdiction would exceed Congress's power under the Necessary and Proper Clause).

248.

See United States v. Edgar, 304 F.3d 1320, 1325-27 (11th Cir. 2002) (upholding 18 U.S.C. § 666(a)(1) as necessary and proper to Congress's Spending Power).

249.

See Sabri v. United States, 541 U.S. 600, 606 (2004) (upholding 18 U.S.C. § 666(a)(2) as necessary and proper to Congress's Spending Power).

250.

Al Bahlul v. United States, 840 F.3d 757, 758 (D.C. Cir. 2016) (per curiam); see also id. at 761-62 (Kavanaugh, J., concurring).

251.

United States v. Mujahid, 799 F.3d 1228, 1233-35 (9th Cir. 2015).

252.

See infra "The "Anti-Commandeering" Doctrine."

253.

See infra "Limits on the Spending Power."

254.

See infra "Equal Sovereignty Doctrine."

255.

570 U.S. 529 (2013).

256.

Printz v. United States, 521 U.S. 898, 921, 929-30 (1997); New York v. United States, 505 U.S. 144, 175, 176-78 (1992).

257.

Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018). The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X.

258.

505 U.S. at 177.

259.

Id. at 175, 176-78 (internal quotation marks and citation omitted).

260.

Id. at 181 (internal quotation marks and citation omitted).

261.

Id. at 169.

262.

Printz v. United States, 521 U.S. 898, 917, 925, 929 (1997).

263.

Id. at 935.

264.

Id. at 929.

265.

Id. at 921, 929-30.

266.

Id. at 930.

267.

Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018).

268.

528 U.S. 141, 143-44, 151-52 (2000).

269.

Id. at 151. In Condon, the Court relied in part on its 1988 decision in South Carolina v. Baker, which similarly rejected a Tenth Amendment challenge to a statute removing a federal tax exemption for interest earned on state and local bonds unless they were issued in registered (as opposed to bearer) form. 485 U.S. 505, 515 (1988). Operating under the assumption that the challenged law "effectively prohibit[ed] issuing [bearer] bonds," the Court upheld the law on the grounds that it applied to both state governments and private corporations, and therefore did not "seek to control or influence the manner in which States regulate private parties." Id. at 514.

270.

Testa v. Katt, 330 U.S. 386, 394 (1947).

271.

Id.

272.

Id. at 387.

273.

Id. at 393.

274.

Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008). While the Court has not yet directly addressed Congress's Fourteenth Amendment powers in its anti-commandeering decisions, other decisions arguably suggest (and a number of commentators have assumed) that another "exception" to the anti-commandeering doctrine exists in cases where Congress legislates pursuant to its power to enforce the Fourteenth Amendment "by appropriate legislation." See U.S. Const. amend. XIV, § 5; Milliken v. Bradley, 433 U.S. 267, 291 (1977) (holding that the "Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment"); Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that the Fourteenth Amendment grants Congress the authority to abrogate the Eleventh Amendment sovereign immunity of states on the grounds that "when Congress acts pursuant to [section 5 of the Fourteenth Amendment], not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional amendment whose other sections by their own terms embody limitations on state authority"); Daniel Hemel, Murphy's Law and Economics, Medium (May 16, 2018), https://medium.com/whatever-source-derived/murphys-law-and-economics-3c0974e21ac8 (explaining that under "a reasonable interpretation" of the Court's anti-commandeering cases, Congress can compel states to adopt and enforce federal policies when it is "acting pursuant to its authority under the Reconstruction Amendments"); Ronald D. Rotunda, The Doctrine of Conditional Preemption and Other Limitations on Tenth Amendment Restrictions, 132 U. Pa. L. Rev. 289, 298-99 (1984) (discussing the proposition that the Tenth Amendment's limitations on Congress's authority do not apply when Congress legislates pursuant to its Fourteenth Amendment powers).

275.

New York v. United States, 505 U.S. 144, 174 (1992). See also FERC v. Mississippi, 456 U.S. 742, 764-65 (1982); Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981).

276.

See Alfred R. Light, He Who Pays the Piper Should Call the Tune: Dual Sovereignty in U.S. Environmental Law, 4 Envtl. Law. 779, 783 (1998) (noting that all of the major environmental statutes pass during the late 1960s and early 1970s "contemplated some form of intergovernmental cooperation between the states and the federal government in implementing the statutory program").

277.

Printz v. United States, 521 U.S. 898, 925 (1997) (citing FERC, 456 U.S. 742; Hodel, 452 U.S. 264).

278.

See FERC, 456 U.S. at 764-65.

279.

138 S. Ct. 1461 (2018).

280.

28 U.S.C. § 3702(1).

281.

Murphy, 138 S. Ct. at 1472.

282.

Id.

283.

Id. at 1478.

284.

Id.

285.

Id.

286.

Id. at 1479-81.

287.

Id. at 1479.

288.

Id. at 1480.

289.

Id. at 1481.

290.

See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999) (noting that Congress "may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take"); Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (noting that Congress may "further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives").

291.

See supra "Spending Clause."

292.

South Dakota v. Dole, 483 U.S. 203, 207 (1987). See also Helvering v. Davis, 301 U.S. 619, 640-41 (1937); United States v. Butler, 297 U.S. 1, 65 (1936). The Court has explained that in considering whether a federal expenditure is intended to serve the general welfare, courts "should defer substantially to the judgment of Congress." Dole, 483 U.S. at 207. Indeed, the Court has even questioned whether the "general welfare" requirement "is a judicially enforceable restriction at all." Id. at 207 n.2 (citing Buckley v. Valeo, 424 U.S. 1, 90-1 (1976)). See also "Spending Clause" supra.

293.

See Dole, 483 U.S. at 207-08. While the "clear notice" and "relatedness" principles discussed infra appear to stem from broader constitutional principles concerning the nature of state sovereignty as opposed to anything found in the text of the Spending Clause, whether those principles qualify as "internal" or "external" limitations on federal power is open to debate. Cf. id. This report addresses the "clear notice" and "relatedness" doctrines with the other limits not found directly within the text of the Spending Clause for ease of discussion.

294.

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).

295.

Id. at 11.

296.

Id. at 13.

297.

Id. at 9-10.

298.

Id. at 11.

299.

Id. at 17.

300.

Id. at 18.

301.

548 U.S. 291 (2006).

302.

Id. at 295-96.

303.

Id. at 296-97.

304.

Id. at 300-03.

305.

Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L. J. 345, 385 (2008).

306.

Id. at 394.

307.

Madison v. Virginia, 474 F.3d 118, 125 (4th Cir. 2006).

308.

Id.

309.

Id.

310.

South Dakota v. Dole, 483 U.S. 203, 207 (1987) (internal quotation marks and citation omitted).

311.

Id. at 212.

312.

Id. at 205.

313.

Id. at 208.

314.

Id. In a footnote, the Dole Court declined to "define the outer bounds of the 'germaneness' or 'relatedness' limitation on the imposition of conditions under the spending power." Id. at 208 n.3.

315.

Barbour v. Wash. Metro. Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004).

316.

Lynn A. Baker & Mitchell N. Berman, Getting Off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 Ind. L. J. 459, 466 (2003).

317.

Dole, 483 U.S. at 208.

318.

The Twenty-First Amendment repealed the Eighteenth Amendment's prohibition of the manufacture, sale, and transportation of alcoholic beverages, replacing it with a prohibition of "[t]he transportation or importation into any State . . . of intoxicating liquors, in violation of the laws thereof." U.S. Const. amend. XXI.

319.

Dole, 483 U.S. at 208-10.

320.

Id. at 209.

321.

Id. at 210.

322.

Id.

323.

Id. at 211.

324.

Id. (internal quotation marks and citation omitted).

325.

Id. at 211-12.

326.

Id.

327.

See Madison v. Virginia, 474 F.3d 118, 122 (4th Cir. 2006) (rejecting a challenge to the Religious Land Use and Institutionalized Persons Act); Cutter v. Wilkinson, 423 F.3d 579, 590 (6th Cir. 2005) (same); Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1170 (D.C. Cir. 2004) (rejecting a challenge to the Civil Rights Remedies Equalization Act); Kansas v. United States, 214 F.3d 1196, 1203 (10th Cir. 2000) (rejecting a challenge to the Personal Responsibility and Work Opportunity Reconciliation Act). But see Commonwealth of Va., Dep't of Educ. v. Riley, 106 F.3d 559, 561 (4th Cir. 1997) (noting that "[a] substantial constitutional question under the Tenth Amendment would be presented" if a provision in the Individuals with Disabilities Education Act were interpreted to permit the Secretary of Education to withhold federal funds for the education of disabled students from states that refused to provide private tutors to disabled students suspended or expelled for serious misconduct unrelated to their disabilities).

328.

See Andrew B. Coan, Judicial Capacity and the Conditional Spending Paradox, 2013 Wis. L. Rev. 339, 348 (describing the consensus among commentators that Dole represented "a blank check to Congress"); Bagenstos, supra note 305, at 355 (concluding that "[n]one of [Dole's] direct limitations on the spending power has had any real bite in the cases"); Lynn A. Baker, Conditional Federal Spending and States' Rights, 574 Annals Am. Acad. Pol. & Soc. Sci. 104, 113 n.18 (2001) (characterizing the "anti-coercion" limitation on Congress's Spending Power identified in Dole as "toothless").

329.

See supra "Commerce Clause."

330.

Eric Turner, Protecting from Endless Harm: A Roadmap for Coercion Challenges After N.F.I.B. v. Sebelius, 89 Chi.-Kent L. Rev. 503, 503 (2014).

331.

567 U.S. 519 (2012).

332.

See supra "Commerce Clause."

333.

567 U.S. at 575.

334.

Id. at 581-85.

335.

Applying the test for determining a case's holding when a majority of the Supreme Court agrees on a result but "no single rationale explaining the result enjoys the assent of five Justices," see Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks and citations omitted), the First and D.C. Circuits have concluded that because Chief Justice Roberts's opinion rested on narrower grounds than did an opinion reaching the same result joined by Justices Scalia, Kennedy, Thomas, and Alito, the portion of Chief Justice Roberts's NFIB opinion addressing the "anti-coercion" issue is controlling. Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 176 n.22 (D.C. Cir. 2015); Mayhew v. Burwell, 772 F.3d 80, 88-89 (1st Cir. 2014).

336.

NFIB, 567 U.S. at 580. In arriving at this conclusion, the Court rejected the federal government's argument that conditioning the continuation of pre-existing Medicaid funding on compliance with the ACA's Medicaid expansion was permissible because in imposing that condition, Congress had not threatened to withhold funds earmarked for any other programs. Id. at 582-82. Specifically, the federal government had argued that (1) Congress can place conditions on how federal funds are to be used, and (2) conditioning Medicaid funding on compliance with the Medicaid expansion amounted to placing conditions on how Medicaid funds were to be used. Id. The Court rejected this argument on the grounds that the Medicaid expansion "transformed" Medicaid from a program designed to cover discrete categories of needy persons into a more comprehensive program covering "the entire nonelderly population with income below 133 percent of the poverty level," thereby "accomplish[ing] a shift in kind, not merely degree." Id. at 583. Because the ACA's Medicaid expansion effectuated this type of change, the Court reasoned, the challenged provision was properly viewed as threatening to deprive states of an "independent" federal grant (pre-existing Medicaid funding), requiring the Court to evaluate whether that threat was overly coercive. Id. at 580.

337.

Id. at 580.

338.

Id. at 580-82.

339.

Id.

340.

Id.

341.

790 F.3d 138, 175 (D.C. Cir. 2015).

342.

Id. at 178.

343.

Id. (internal quotation marks and citation omitted).

344.

Jonathan H. Adler & Nathaniel Stewart, Is the Clean Air Act Unconstitutional? Cooperative Federalism and Conditional Spending After NFIB v. Sebelius, 43 Ecology L. Q. 671, 710 (2017). See also Samuel R. Bagenstos, The Anti-Leveraging Principle and the Spending Clause After NFIB, 101 Geo. L. J. 861, 920 (2013) (arguing that if the EPA "were to shut off all federal highway funds to a state based on the state's failure to provide a sufficient response to stationary sources of pollution," it would face "serious questions" based on the Court's decision in NFIB).

Two commentators have also argued that a provision in the CAA that requires states to (1) adopt plans to improve their air quality that meet certain standards, or (2) face stricter federal emission "offset" requirements than they would otherwise face, raises concerns under the anti-coercion doctrine. Adler & Stewart, supra note 344, at 714-15. While acknowledging that the Court's decision in New York appears to accept the permissibility of federal statutes that impose heightened regulatory burdens on states that fail to cooperate with federal policy as long as the additional burdens fall on private citizens and not the states themselves, these commentators have noted that during the oral argument for a case involving the ACA, Justice Kennedy expressed disagreement with that proposition. Id.; Transcript of Oral Argument at 19, King v. Burwell, 135 S. Ct. 2480 (2015) ("In South [Dakota] v. Dole where . . . the matter of funding for the highway, suppose Congress said, and if you don't build the highways, you have to go 35 miles an hour all over the State. We wouldn't allow that."). However, the Court's opinion in King did not ultimately address the anti-coercion issue that Justice Kennedy raised at oral argument. See King, 135 S. Ct. 2480.

345.

See Adler & Stewart, supra note 344, at 713-21; Opening Brief of Petitioners on Core Legal Issues at 78-86, West Virginia v. EPA, No. 15-1363 (D.C. Cir. Feb. 16, 2016); Testimony of Laurence H. Tribe, EPA's Proposed 111(d) Rule for Existing Power Plants: Legal and Cost Issues, House Comm. on Energy and Commerce (Mar. 17, 2015) at 23-26, https://docs.house.gov/meetings/IF/IF03/20150317/103073/HHRG-114-IF03-Wstate-TribeL-20150317-U1.pdf; David B. Rivkin, Jr., Andrew M. Grossman, & Mark W. DeLaquil, Does EPA's Clean Power Plan Proposal Violate the States' Sovereign Rights?, 16 Engage: J. Federalist Soc'y Prac. Grps. 36 (Feb. 2015).

346.

As discussed, see supra "The 'Anti-Commandeering' Doctrine," the federal government conditionally preempts state law when it "offer[s] States the choice of regulating . . . according to federal standards or having state law pre-empted by federal regulation." New York v. United States, 505 U.S. 144, 174 (1992). See also FERC v. Mississippi, 456 U.S. 742, 764-65 (1982); Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981).

347.

Opening Brief of Petitioners on Core Legal Issues, supra note 345, at 78-86.

348.

40 C.F.R. § 60.5855(a).

349.

Id. § 60.5720.

350.

Opening Brief of Petitioners on Core Legal Issues, supra note 345, at 85.

351.

Id.

352.

Id. (internal quotation marks and citation omitted).

353.

Order, Chamber of Commerce, et al. v. EPA, et al., No. 15A787 (Feb. 9, 2016).

354.

See Jonathan H. Adler, Supreme Court puts the brakes on the EPA's Clean Power Plan, Wash. Post (Feb. 9, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/09/supreme-court-puts-the-brakes-on-the-epas-clean-power-plan/?utm_term=.bca3d9f80694.

355.

See CRS Legal Sidebar LSB10198, EPA Proposes the Affordable Clean Energy Rule to Replace the Clean Power Plan, by Linda Tsang (Sept. 26, 2018).

356.

U.S. Const. amend XI.

357.

See, e.g., Colby v. Herrick, 849 F.3d 1273, 1281 (10th Cir. 2017) ("The Eleventh Amendment applies, foreclosing suit against the Division. Thus, the district court was right to dismiss the claims against the Division.").

358.

See, e.g.,Dellmuth v. Muth, 491 U.S. 223, 227 (1989) (discussing "principles of federalism that inform Eleventh Amendment doctrine") (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)).

359.

134 U.S. 1, 1-21 (1890).

360.

See Louise Weinberg, Of Sovereignty and Union: The Legends of Alden, 76 Notre Dame L. Rev. 1113, 1123 (2001) (opining that the Supreme Court's Eleventh Amendment jurisprudence "frustrates judicial enforcement against the states of federal constitutional and legal norms").

361.

See, e.g.,Beaulieu v. Vermont, 807 F.3d 478, 483 (2d Cir. 2015) ("The concept of state sovereign immunity encompasses different species of immunity. The Eleventh Amendment . . . identifies a single species: immunity of a state's treasury from claims for damages brought by private entities in federal court . . . States also enjoy a broader sovereign immunity, which applies against all private suits, whether in state or federal court . . . The Eleventh Amendment is but one particular exemplification of that immunity.") (internal citations, quotation marks, and ellipses omitted).

362.

Alden v. Maine, 527 U.S. 706, 713 (1999).

363.

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Hans, 134 U.S. at 13).

364.

Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018).

365.

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (quoting Emps. Of Dep't of Pub. Health & Welfare v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 294 (1973) (Marshall, J., concurring in the result)).

366.

Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004).

367.

Alden, 527 U.S. at 751.

368.

Id. at 750.

369.

E.g., Beaulieu v. Vermont, 807 F.3d 478, 483 (2d Cir. 2015).

370.

See, e.g., Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 754 (2002).

371.

See U.S. Const. amend XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.") (emphasis added). See also, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) ("By its terms the Amendment applies only to suits against a State by citizens of another State.").

372.

Garrett, 531 U.S. at 363 (emphasis added).

373.

See U.S. Const. amend XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.") (emphasis added).

374.

See, e.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) ("It has long been settled that the reference to actions 'against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities."). The Eleventh Amendment does not, however, protect municipal entities. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). Moreover, as discussed below, courts have recognized exceptions where it is permissible to sue a state official in his official capacity in federal court.

375.

U.S. Const. amend XI ("The Judicial power of the United States shall not be construed to extend to any suit . . . commenced or prosecuted against one of the United States . . .") (emphasis added). See also Alden v. Maine, 527 U.S. 706, 730 (1999) (stating that "the fact that the Eleventh Amendment by its terms limits only '[t]he Judicial power of the United States'" does not delimit the Eleventh Amendment's breadth).

376.

Alden, 527 U.S. at 754 (emphasis added).

377.

Id. at 750. That said, the Supreme Court held in the 1979 case of Nevada v. Hall that the Eleventh Amendment does not necessarily prohibit a litigant from suing a state in another state's courts. See 440 U.S. 410, 421 (1979) (concluding that a California court could validly enter a judgment against the State of Nevada). The Supreme Court granted certiorari to decide whether to overrule Nevada v. Hall. See Order Granting Petition for Writ of Certiorari, Franchise Tax Bd. of State of Cal. v. Hyatt, No. 17-1299 (June 28, 2018).

378.

U.S. Const. amend XI.

379.

Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) ("Simply put, if the Framers thought it an impermissible affront to a State's dignity to be required to answer the complaints of private parties in federal courts, we cannot imagine that they would have found it acceptable to compel a State to do exactly the same thing before the administrative tribunal of an agency . . . The affront to a State's dignity does not lessen when an adjudication takes place in an administrative tribunal as opposed to an Article III court.").

380.

See U.S. Const. amend XI (emphasis added).

381.

See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) ("[The text of the Eleventh Amendment] could suggest that the Eleventh Amendment . . . is cast in terms of reach or competence, so that the federal courts are altogether disqualified from hearing certain suits brought against a State. This interpretation, however, has been neither our tradition nor the accepted construction of the Amendment's text . . . The Amendment . . . enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary's subject matter jurisdiction."). Additionally, the Supreme Court has also recognized that multi-state entities created pursuant to compacts between states are ordinarily "not cloaked with the Eleventh Amendment immunity that a State enjoys" on its own. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 32-33 (1994).

382.

United States v. Mississippi, 380 U.S. 128, 140 (1965).

383.

See, e.g., Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017) ("There are three exceptions to sovereign immunity."). There are also other limited circumstances in which a litigant may hale a state into a federal court against its will that do not fit neatly within the three exceptions discussed herein. See, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 359, 379 (2006) (concluding that, notwithstanding the Eleventh Amendment, a bankruptcy trustee may pursue certain types of bankruptcy-related claims against a state agency); Kansas v. Colorado, 533 U.S. 1, 7 (2001) ("We have decided that a State may recover monetary damages from another State in an original action, without running afoul of the Eleventh Amendment."); S. Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 165-66 (1999) (reaffirming "that '[t]he Eleventh Amendment does not constrain the appellate jurisdiction of the Supreme Court over cases arising from state courts'" to which the state is a party, even if the state objects to the Supreme Court adjudicating the case) (quoting McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 31 (1990)); California v. Deep Sea Research, Inc., 523 U.S. 491, 494-95 (1998) ("The Eleventh Amendment does not bar the jurisdiction of a federal court over an in rem admiralty action where the res is not within the State's possession.").

384.

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-87, 691 (1999) (quoting Clark v. Barnard, 108 U.S. 436, 447 (1883)).

385.

Coeur d'Alene Tribe, 521 U.S. at 267.

386.

Coll. Sav. Bank, 527 U.S. at 675-76 (internal citations omitted).

387.

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (internal citations omitted).

388.

See Coll. Sav. Bank, 527 U.S. at 675

389.

E.g., Fryberger v. Univ. of Ark., 889 F.3d 471, 473 (8th Cir. 2018) (quoting Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000)). But see Hurst v. Tex. Dep't of Assistive & Rehabilitative Servs., 482 F.3d 809, 811 (5th Cir. 2007) ("A state's receipt of federal funds does not automatically constitute a waiver of its Eleventh Amendment immunity."); Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 278 (5th Cir. 2005) (en banc) (applying "a five-prong test" to assess whether Congress had validly "condition[ed] the availability of federal funds on a state's waiver of its Eleventh Amendment immunity").

390.

For additional discussion of the IDEA and funding conditions, see "Clear Notice" supra.

391.

See, e.g., Pace, 403 F.3d at 275-89 (holding that, "when Louisiana accepted particular federal funds, it waived the immunity afforded it by the Eleventh Amendment to suits under . . . the IDEA"); A.W. v. Jersey City Pub. Schs., 341 F.3d 234, 236 (3d Cir. 2003) (holding that the New Jersey Department of Education and several of its officials had "waived any immunity from" claims under the IDEA "by the acceptance of federal financial assistance").

392.

See, e.g., Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of Univ. Sys. of Ga., 633 F.3d 1297, 1312 (11th Cir. 2011) ("Sovereign immunity is no bar to a claim for damages when Congress validly abrogates the States' sovereign immunity through legislation.").

393.

Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990) (internal citations and quotation marks omitted).

394.

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)).

395.

See, e.g., id. at 67 (concluding that even though the Age Discrimination in Employment Act "contain[ed] a clear statement of Congress's intent to abrogate the States' immunity," the attempted "abrogation exceeded Congress' authority under § 5 of the Fourteenth Amendment").

396.

Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (quoting Kimel, 528 U.S. at 73).

397.

See generally supra "Internal Federalism Limitations on Congress's Powers."

398.

Kimel, 528 U.S. at 78 (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996)).

399.

But cf. Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (concluding that the Bankruptcy Clause of Article I "authorize[s] limited subordination of state sovereign immunity in the bankruptcy arena," but emphasizing that Congress's "power to do so arises from the Bankruptcy Clause itself; the relevant 'abrogation' is the one effected in the plan of the [Constitutional] Convention, not by statute").

400.

Garrett, 531 U.S. at 364.

401.

E.g., Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727 (2003) ("Congress may not abrogate the States' sovereign immunity pursuant to its Article I power over commerce."). See generally supra "Commerce Clause."

402.

See, e.g., Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of Univ. Sys. of Ga., 633 F.3d 1297, 1315 (11th Cir. 2011) ("Congress may not abrogate the States' sovereign immunity pursuant to the Copyright and Patent Clause."). See generally U.S. Const. art. I, § 8, cl. 8 ("The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.").

403.

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999) (emphasis added).

404.

See supra "Congress's Powers Under the Civil War Amendments."

405.

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65-66 (1996).

406.

U.S. Const. amend XIV, § 5.

407.

See id. § 1 ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") (emphasis added). Accord Fitzpatrick v. Bitzer, 427 U.S. 445, 453 (1976) ("The substantive provisions of [the Fourteenth Amendment] are by express terms directed at the States.").

408.

Fitzpatrick, 427 U.S. at 456.

409.

Id. at 447.

410.

See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 80 (2000). For a discussion of the types of statutes that Congress may validly enact pursuant to Section 5 of the Fourteenth Amendment, see supra "Congress's Powers Under the Civil War Amendments."

411.

"Injunctive relief" is judicially granted relief "that has the quality of directing or ordering; of, relating to, or involving an injunction." Black's Law Dictionary (10th ed. 2014). An "injunction" is "a court order commanding or preventing an action." Id.

412.

"Declaratory relief" is a "request to a court to determine the legal status or ownership of a thing." Id. A "declaratory judgment" is "a binding adjudication that establishes the rights and other legal relations of the parties." Id.

413.

See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) ("The Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law."); Green v. Mansour, 474 U.S. 64, 68 (1985) ("The Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law."); Boler v. Earley, 865 F.3d 391, 412 (6th Cir. 2017) ("The exception set forth in Ex Parte Young allows plaintiffs to bring claims for prospective relief against state officials sued in their official capacity to prevent future federal constitutional or statutory violations."); Balgowan v. New Jersey, 115 F.3d 214 (3d Cir. 1997) ("The Ex Parte Young exception has been interpreted by courts to allow suits against state officials for both prospective injunctive and declaratory relief. Although Ex Parte Young's exact wording allows suits for prospective injunctive relief, the 1908 opinion was issued well before declaratory relief was available.") (emphasis added; internal citations omitted). But see Town of Barnstable v. O'Connor, 786 F.3d 130, 138-39 (1st Cir. 2015) (emphasizing that "Congress may render the Ex parte Young exception inapplicable by 'prescrib[ing] a detailed remedial scheme for the enforcement against a State of a statutorily created right'") (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996)).

414.

E.g., Elephant Butte Irrigation Dist. of N.M. v. Dep't of the Interior, 160 F.3d 602, 608 (10th Cir. 1998) (stating that Ex Parte Young may apply "even if the state is immune").

415.

See Ex Parte Young, 209 U.S. 123 (1908).

416.

Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002) (quoting Ex Parte Young, 209 U.S. at 160).

417.

Id. (quoting Ex Parte Young, 209 U.S. at 160).

418.

Alden v. Maine, 527 U.S. 706, 747 (1999).

419.

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).

420.

Id. (internal citations omitted).

421.

E.g., Boler v. Earley, 865 F.3d 391, 412 (6th Cir. 2017) ("The exception set forth in Ex Parte Young allows plaintiffs to bring claims . . . against state officials sued in their official capacity.") (emphasis added). Notably, the Supreme Court has also concluded that the Eleventh Amendment does not bar suits against individual officers in their personal capacities pursuant to 42 U.S.C. § 1983, a federal statute that authorizes certain civil lawsuits against individual state officers predicated upon alleged violations of federal constitutional or statutory law. Hafer v. Melo, 502 U.S. 21, 31 (1991).

422.

Puerto Rico Aqueduct, 506 U.S. at 146.

423.

E.g., Mills v. Maine, 118 F.3d 37, 54 (1st Cir. 1997) ("Ex Parte Young allows a way around the bar to federal jurisdiction erected by the Supreme Court's Eleventh Amendment jurisprudence only in cases where prospective declaratory or injunctive relief is sought.").

424.

Hafer, 502 U.S. at 30 (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)).

425.

E.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) ("Federal courts may not award . . . money damages or its equivalent[] if the State invokes its immunity.").

426.

Papasan v. Allain, 478 U.S. 265, 278 (1986). That said, the Eleventh Amendment does not preclude "monetary relief that is 'ancillary' to injunctive relief." Kentucky v. Graham, 473 U.S. 159, 169 n.18 (1985). "A court may enter a prospective injunction that costs the state money" as long as "the monetary impact is . . . not the primary purpose of the suit." E.g., Barton v. Summers, 293 F.3d 944, 950 (6th Cir. 2002).

427.

E.g., S & M Brands, Inc. v. Cooper, 527 F.3d 500, 508 (6th Cir. 2008) ("The Ex parte Young exception does not, however, extend to any retroactive relief."); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003) ("Under the doctrine of Ex parte Young, suits against an official for prospective relief are generally cognizable, whereas claims for retrospective relief (such as damages) are not."). Courts have acknowledged, however, that "the distinction between prospective and retroactive relief is not always easy to discern" in practice. Armstead v. Coler, 914 F.2d 1464, 1468 (11th Cir. 1990).

428.

Town of Barnstable v. O'Connor, 786 F.3d 130, 138 (1st Cir. 2015) (quoting Whalen v. Mass. Trial Ct., 397 F.3d 19, 29 (1st Cir. 2005)).

429.

Papasan, 478 U.S. at 277 (emphasis added).

430.

E.g., Doe v. Regents of Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018) (emphasis added).

431.

Shelby Cty., Ala. v. Holder, 570 U.S. 529, 544 (2013).

432.

Id. at 544 (stating that equal sovereignty is "highly pertinent in assessing . . . disparate treatment of States") (citingNw. Austin Mun. Util. Dist. v. Holder, 557 U.S. 193, 203 (2009)).

433.

Id. at 556-57.

434.

See id. at 534-57.

435.

See, e.g., Leah M. Litman, Inventing Equal Sovereignty, 114 U. Mich. L. Rev. 1207, 1243-46 (2016) (citing examples of statutes that "specifically identify particular states for differential treatment or adopt a rule that has a differential effect on different states").

436.

See id. at 1230-32 (acknowledging the lack of explicit textual support but arguing that the "textual argument for the state equality principle is not much worse than the textual support for other constitutional rules").

437.

U.S. Const. art. I, § 8, cl. 1.

438.

Id. art. I, § 8, cl. 4.

439.

Id. art. I, § 9, cl. 6.

440.

See Litman, supra note 435, at 12.

441.

See Shelby Cty., Ala. v. Holder, 570 U.S. 529, 544 (2013) (discussing prior precedent).

442.

44 U.S. 212 (1845).

443.

Id. at 223.

444.

Id.

445.

221 U.S. 559 (1911).

446.

Id. at 563-64.

447.

Id. at 565.

448.

Id. at 567. See also Escanaba & Lake Mich. Transp. Co. v. City of Chicago, 107 U.S. 678, 688-689 (1883) (holding that the State of Illinois "was admitted, and could be admitted, only on the same footing" as original states); Thomas B. Colby, In Defense of the Equal Sovereignty Principle, 65 Duke L.J. 1087, 1104-32 (2016) (reviewing history of "equal footing" doctrine).

449.

557 U.S. 193 (2009).

450.

570 U.S. 529, 539-40 (2013) (citing Nw. Austin, 557 U.S. at 201-205).

451.

52 U.S.C. § 10303(b).

452.

"Preclearance" is defined by the Supreme Court as the process of approving voting procedures by the federal authorities under the VRA—either via the Attorney General or a court of three judges. Shelby Cty., 570 U.S. at 537.

453.

52 U.S.C. § 10304.

454.

383 U.S. 301 (1966).

455.

Id. at 334-35.

456.

Shelby Cty., 570 U.S. at 538-39.

457.

Id. at 540-41.

458.

For an explanation of the doctrine of constitutional avoidance, see CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon, at 29-31.

459.

Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009). The Court avoided the constitutional issue in the case by reversing the lower court on its statutory determination and holding that the Northwest Austin Municipal Utility District was a "political subdivision" within the meaning of the VRA and could avail itself of the statutory "bailout" provision. Id. at 210-11.

460.

Shelby Cty., 570 U.S. at 550, 556-57.

461.

Id. at 542 (citingNw. Austin, 557 U.S. 193, 203).

462.

Id. at 554.

463.

Id. at 551.

464.

Id. at 556.

465.

730 F.3d 208 (3d Cir. 2013).

466.

See supra "The "Anti-Commandeering" Doctrine."

467.

28 U.S.C. § 3702(1).

468.

Id. § 3704(a)(2)(B).

469.

NCAA, 730 F.3d at 238.

470.

Id. at 237-38.

471.

Id. at 238.

472.

Id.

473.

Id. at 238-39.

474.

Id. at 238.

475.

Id.

476.

Id. at 239.

477.

Id.

478.

See supra "The "Anti-Commandeering" Doctrine."

479.

772 F.3d 80 (1st Cir. 2014).

480.

Id. at 83-84.

481.

Id. at 84.

482.

Id. at 93-94.

483.

Id. at 94.

484.

Id.

485.

Id.

486.

Id. at 94-95.

487.

Id. at 95.

488.

Id. at 96.

489.

Id.

490.

Id. at 97 ("We . . . find no constitutional violation.").