Legal Commentary

Preparing for my seminar on federalism, I was forced to re-read Justice Breyer?s dissent in Printz, which is now my nominee for The Worst Comparative Con Law Argument Ever. Justice Breyer, you'll recall, argued that being commandeered by the feds was not necessarily detrimental to the power of states:

At least some other countries, facing the same basic problem, have found that local control is better maintained through application of a principle that is the direct opposite of the principle the majority derives from the silence of our Constitution. The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central ?federal? body.

The obvious rejoinder to this argument is that these European sub-central governments have a constitutionally protected monopoly on the implementation of central directives. The German Lander, for instance, are entitled to administer most federal statutes as a matter of their own concern pursuant to Article 83 of the Grundgesetz. Moreover, the Lander collectively control the costs of such implementation by exercising a collective veto over mandates through the Bundesrat, a council of delegates appointed by the Lander?s minister-presidents.

Of course, implementing federal law on these monopolistic terms is extraordinarily advantageous to the subcentral governments: Just ask the Anti-Federalists who did not object to being commandeered by the feds if they could only have a monopoly on implementation. The difficulty with extending this analogy to the United States is that Congress has the option of side-stepping the states and using a purely federal bureaucracy if the states do not implement federal law exactly according to federal specifications. Being commandeered without any monopoly on implementation is no power at all.

(Shameless self-promotion: Daniel Halberstam and I long ago argued that the Printz entitlement is, in fact, the American version of the Grundgesetz?s Bundesrat. Daniel Halberstam & Hills, State Autonomy in Germany and the United States, 574 Annals of the American Academy of Political and Social Science 173-184 (2001)). Printz gives the American states the power to bargain individually for money and discretion, functioning as a weaker version of the collective bargaining mechanism provided by the German?s council of Lander).

So please defend federal commandeering of states if you want. But please, please, please refrain from arguing that it is somehow good for states themselves. States can bargain for power to implement federal policy under the Printz regime: They gain nothing whatsoever by being subject to conscription. But if you really feel the need to be counter-intuitive (and wrong) by defending commandeering as somehow a pro-federalism device, leave the Germans out of it. No self-respecting German Land would consent to being commandeered American-style.