Amicus Curiae Brief — County of Allegany, New York v. United States (Nos. 91-558, 91-543, 91-563)

Suptane Court, U.S.

Es DD

Nos. 91-543, 91-558, 91-563 |

IN THE SUPREME COURT} |: \) | 2 1992

OF THE UNITED STATES | __

Uri rT ire GLLAA

) ree Ok re te ee

October Term, 1991

THE STATE OF NEW YORK, et al,

Petitioners,

v

THE UNITED STATES OF AMERICA, et al,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF AMICUS CURIAE STATE OF

MICHIGAN IN SUPPORT OF PETITIONERS

FRANK J. KELLEY

Attorney General of the

State of Michigan

GAY SECOR HARDY

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

($17) 373-1124

THOMAS L. CASEY

A. MICHAEL LEFFLER

JOHN C. SCHERBARTH

Assistant Attorneys General

Attorneys for Amicus

State of Michigan

a a

wiki

QUESTION PRESENTED

WHETHER THE LOW-LEVEL RADIOACTIVE POLICY

AMENDMENTS ACT OF 1985 WHICH MANDATES A

STATE TO EXERCISE ITS EXECUTIVE AND

LEGISLATIVE POWERS VIOLATES THE GUARANTEE

CLAUSE OF THE UNITED STATES CONSTITUTION

BECAUSE IN THE EXERCISE OF THOSE POWERS

IT COMPELS A STATE TO BE ACCOUNTABLE TO

THE UNITED STATES CONGRESS RATHER THAN TO

THE MAJORITARIAN WILL OF ITS CITIZENS.

-ji-

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....cccccccccccvecs i

TABLE OF AUTHORITIES ....ceeeeeccccees iii

INTEREST OF THE STATE

OP MICHIGAN ..ccccccccccsccccsccecess 1

SUMMARY OF ARGUMENT .....2eeeeeeeccces 8

ARGUMENT :

I. CONGRESS IS LIMITED IN THE

EXERCISE OF ITS COMMERCE

CLAUSE AUTHORITY BY THE

RIGHTS RETAINED BY THE

SOVEREIGN STATES UNDER

THE FEDERAL SYSTEM ......-cceeeeees 13

II. CONGRESS HAS EXCEEDED LIMITS

IMPOSED UPON IT BY THE

GUARANTEE CLAUSE IN ITS

ENACTMENT OF THE 1985 ACT ........ 24

CONCLUSION ..cccccccccccccsccsesecseses 50

-iii-

TABLE OF AUTHORITIES

Pages

CASES

Chisholm v Georgia, 2 US

Teh MEM CAUOE) coccccccccccs 30,31

FERC v Mississippi,

DP ME MME. ceceeccececcceccs 41-43

Garcia v San Antonio

Metropolitan Transit Authority,

469 US 528 (19858) .cccccccvcccvcs passim

Gregory v Ashcroft, 501 US .

De EE OC ROORD cocccccccce 18,37

Hodel v Virginia Surface Mining

& Reclamation Ass'n,

DPT CCM—~EEE cececceccccceccces 40,41

In re Duncan,

~~~ ED Geeseccesceccececce 31

INS v Chadha,

DTP UEMEMEED ccccccceccccceses 13,48

Luther v Borden, 48 US

MID, occ ccc cc ccccc cs 36

National League of Cities

v Usery, 426 US 833 (1976) ..... 9,16-19

Philadelphia v New Jersey,

POTEET CEMPUED coccececccccccece 24,25

Reeves, Inc. v Stake,

447 US 429 (1980) cc cceeeeeeccces 25,26

-iv-

South Carolina v Baker,

485 US 505 (1989) ......

South Dakota v Dole,

483 US 203 (1987) ......

State of Michigan, et al v

Pages

22,23,42,43

United States of America, et al,

USDC (WD Mich) Case No.

5-90-CV-27 (6th Cir. Docket

ee BaP aeee 1600666606 es

United States v Darby,

312 US 100 (1941) ......

Washington State Building and

Construction Trades Council v

Spellman, 684 F2d 627 (9th

Cir. 1982), cert denied

461 US 913 (1983) ......

STATUTES

19B2Z PA 460 .ccccccccccces

L9G7T PA 1139 accccscccccces

L9GT PA 203 .cccccccccccss

L9GT PA 206 wccccccecccess

42 USC §§ 2021b-20213

42 USC §§ 2021b

et seq, P.L. 96-573

42 USC § 2021e(d)(2)(C)

-V-

Pages

26 USCS § 103, Tax Equity and

Fiscal Responsibility Act

OG Sees & UO ceseehaneeesivacanens 42,43

CONSTITUTION

U.S. Const, Art IV § @ cccccccccees passim

Mich Const 1963, Art IV § 52 ........ 6

Mich Const 1963, Art IX § 18 ........ 18

MISCELLANEOUS

Chandler, Enslen and Renstrom,

The Constitutional Law

Dictionary, Volume I, p. 56

PE ee aeke Sb desde one eaten kaw ee oat 32

The Federalist No. 28 at 179

(A. Hamilton) (J. Cooke Ed. 1961).. 15

The Federalist No. 39 at 251

(J. Madison) (J. Cooke Ed. 1961)... 35

The Federalist No. 51 at 35l

(J. Madison) (J. Cooke Ed. 1961)... 14

Merritt, The Guarantee Clause

And State Autonomy: Federalism

for a Third Century,

88 Columbia Law Review 1 (1988)..passim

Tribe, American Constitutional

Law (2nd Ed), § 5-23,

PP 397-398 (1988) wc cece eeeeevevees 34

INTEREST OF THE STATE OF MICHIGAN

The decision in these cases by the

United States Court of Appeals for the

Second Circuit presents important consti-

tutional questions pertaining to the

extent to which federal authority under

the Commerce Clause can impinge upon the

autonomy of independent sovereign States

within this Union.

Petitioners are challenging the

constitutionality of the Low-Level

Radioactive Waste Policy Amendments Act

of 1985, 42 USC §§ 2021b-2021j (1985 Act)

on state sovereignty grounds which have

their basis in the Tenth Amendment of the

United States Constitution and the

Guarantee Clause found in Art IV, § 4 of

the United States Constitution. Michigan

supports the arguments advanced by Peti-

tioner State of New York and amicus State

wt.

of Connecticut that the 1985 Act violates

the state sovereignty implicit in the

Tenth Amendment of the United States

Constitution. In addition, Michigan

urges this Court to find that the 1985

Act violates State sovereignty implicit

in the Guarantee Clause of the United

States Constitution requiring the United

States to guarantee to every State in

this Union a republican form of govern-

ment. New York has raised this issue

merely as an element of State sovereignty

and not as an independent ground for

declaring the 1985 Act unconstitutional.

Petitioner County of Allegany has _ spe-

cifically raised this issue as it relates

to a local unit of government. Michigan

asserts that the Guarantee Clause most

directly and properly relates to a State.

ofa

In 1980, the United States Congress

passed the Low-Level Radioactive Waste

Policy Act, 42 USC §§ 2021b et seg, P.L.

96-573 (1980 Act). The 1980 Act was

amended in 1985 by the passage of the

1985 Act. The 1985 Act mandates that

each State must provide for the disposal

of all low-level radioactive waste

(LLRW), generated within its borders

except for defense related LLRW generated

by the federal government. Pursuant to

the policy of the 1980 Act, Michigan

responded by joining a compact in 1982

known as the Midwest Interstate Low-Level

Radioactive Waste Management Compact

(Midwest Compact). The United States

Congress consented to the Midwest Compact

only after passage of the 1985 Act which

mandated its 1980 policy. In fact,

Congress conditioned its consent upon the

o4-

mandates contained within the 1985 Act.

The United States Congress has made no

effort to provide financing to the States

obligated to execute this federal policy.

The State of Michigan has_ taken

numerous executive and legislative

actions in furtherance of the congres-

Sional mandates contained in the 1985

Act. The following list represents some

of those actions taken.

1. Entering into the Midwest Inter-

state Low-Level Radioactive Waste

Compact, through the passage of

legislation, 1982 PA 460.

2. The passage of legislation, 1987

PA 204, creating a é Low-Level

Radioactive Waste Authority to

carry out the State's responsibil-

ities to provide for the disposal

of LLRW.

3. The passage of legislation, i987

PA 203, to provide for Michigan

Department of Public Health over-

sight over the siting of a Low-

Level Radioactive Waste Disposal

Facility.

=_=

4. The appointment of a Low-Level

Radioactive Waste Authority

Director and a Commissioner to the

Midwest Interstate Low-Level

Radioactive Waste Compact.

5. The Amendment of a State statute,

1987 PA 113 in order to allow for

the previously prohibited disposal

of LLRW in Michigan.

In June of 1987, Michigan was

selected by the Midwest Interstate Low-

Level Radioactive Waste Management

Commission (Commission) as the first host

State for a regional low-level radioac-

tive waste disposal facility.

As part of its responsibility to

develop a LLRW disposal facility,

Michigan was required to adopt siting

criteria. The siting criteria were com-

pleted on May 16, 1989 after an extensive

process which considered such factors as

the extent oof valuable fresh water

~

sources within the Scate, in light of the

mandate of Mich Const 1963, Art IV, § 52

which provides:

Sec. 52. The conservation and devel-

opment of the natural resources of

the state are hereby declared to be

of paramount public concern in the

interest of the health, safety and

general welfare of the people. The

legislature shall provide for the

protection of the air, water and

other natural resources of the state

from pollution, impairment and

destruction.

The siting process in Michigan was

funded pursuant to a = pre-operational

funding agreement between Michigan and

the Commission. In August of 1990 the

Commission threatened to withhold any

further funding unless Michigan changed

its siting criteria by making them less

stringent. Michigan refused to change

these criteria. The Commission withheld

further funding.

ofa

In November of 1990 the sited States

of South Carolina, Washington, and Nevada

denied access to their LLRW disposal

facilities to LLRW generators’ located

within Michigan. Michigan generators

are, therefore, storing their LLRW on

site. In July of 1991 the Commission

voted to revoke Michigan's membership in

the Compact.

The State of Michigan is challenging

the constitutionality of the 1985 Act on

State sovereignty and Guarantee Clause

grounds in State of Michigan, et al v

United States of America, et al, US

District Court, WD of Michigan, Case No.

5-90-CV-27. Michigan is currently

appealing the dismissal of this case to

the United States Court of Appeals for

the Sixth Circuit, Docket No. 91-2281.

~

The Court of Appeals has ordered that the

case be held in abeyance pending the out-

come of this case.

SUMMARY OF ARGUMENT

The United States Constitution has

established a federal form of government

in which a balance of power exists

between the national government and the

sovereign States comprising the Union

represented by the national government.

This balance of power inures to the bene-

fit of individual citizens whose rights

are protected when neither level of gov-

ernment becomes all-powerful.

Congress is restricted in the exer-

cise of its delegated Commerce Clause

authority by the retained rights of the

sovereign States comprising the Union.

-9-

This Court has recognized the existence

of such limits, but the nature and con-

tent of the limits has proven difficult

to delineate. This difficulty is most

readily apparent in National League of

Cities v Usery, 426 US 833 (1976), and

Garcia v San Antonio Metropolitan Transit

Authority, 469 US 528 (1985).

The Garcia case articulated the

political process doctrine as the princi-

pal means of insuring the protection of a

State's sovereignty. The Court recog-

nized that additional limits exist which

restrict Congress under its delegated

Commerce Clause authority. However, in

the context of the Garcia case, this

Court held that it need not determine the

extent of these limits. When, as in the

case of the 1985 Act, Congress has so

=2@=

intrusively impinged on a State's sov-

ereignty, it is appropriate to ascertain

the limits on congressional authority and

to determine whether Congress has

exceeded those limits.

The 1985 Act is extraordinarily

intrusive upon the autonomy of the sover-

eign States. The extreme nature of this

intrusion is apparent from a review of

the mandates of the 1985 Act which compel

States to engage in the commerce of dis-

posing of LLRW. It goes well beyond

statutes compelling States to engage in

the regulation of commerce. The intru-

Sion is even more extreme when the puni-

tive measures to compel the States to

engage in the commerce are considered.

These punitive measures involve a shift-

ing of title to, and liability for, LLRw

elieg

from either the private sector or in some

cases the federal government itself.

The Guarantee Clause of the United

States Constitution guarantees to every

State a republican form of government. A

republican form of government is one in

which the people choose their rulers who

in turn pass their own laws through the

majoritarian process.

It is appropriate to rely upon the

protections afforded by the Guarantee

Clause as a restraint on Congress in the

exercise of its delegated authority under

the Commerce Clause. Michigan urges the

adoption by the Court of the analysis of

this restraint by Professor Deborah Jones

Merritt from the University of Illinois

School of Law. While this suggested

Guarantee Clause analysis has never been

-12-

directly applied by the Court, it is con-

sistent with the rationale and result in

several decisions which have recognized

that a congressional enactment which com-

mandeers either the legislative or execu-

tive branches of the State government is

constitutionally suspect.

The 1985 Act commandeers both the

legislative and executive branches of a

State's government. Its mandates imple-

ment federal policies and make State gov-

ernments accountable to private entities

and to the federal government rather than

to a State's own citizens thereby denying

the States a republican form of govern-

ment as guaranteed to them by the

Guarantee Clause of the United States

Constitution.

CONGRESS IS LIMITED IN THE EXERCISE

OF ITS COMMERCE CLAUSE AUTHORITY BY

THE RIGHTS RETAINED BY THE SOVEREIGN

STATES UNDER THE FEDERAL SYSTEM.

This Court has recognized "(t]he

hydraulic pressure inherent within each

of the separate Branches to exceed the

outer limits of its power .. ." INS v

Chadha, 469 US 919, 951 (1983). AS

Justice Powell observed in his dissent in

Garcia v San Antonio Metropolitan Transit

Authority, 469 US 528, 565 (1985) "[t)he

Court offers no reason to think that this

pressure will not operate when Congress

seeks to invoke its powers under the

Commerce Clause, notwithstanding the

electoral role of the states." (footnote.

omitted). Michigan asserts that the 1985

Act is a clear example where the

~L@eq

"hydraulic pressure" upon the United

States Congress to resolve the highly

charged political issue of LLRW disposal

operated to the extreme and resulted in

Congress exceeding the outer limits of

its Commerce Clause authority.

The Framers of the Constitution rec-

ognized advantages in dividing power

between the national and State govern-

ments. Madison asserted that "(ijn the

compound Republic of America a double

security arises to the rights of the

people. The different governments will

control each other, at the same time that

each will be controlled by itself." The

Federalist No. 51 at 351 (J. Madison)

(J. Cooke Ed. 1961). Alexander Hamilton

Similarly opined that: "[Pjower being

almost always the rival of power the gen-

o}G-

eral government will at all times stand

ready to check the usurpations of the

state governments, and these will have

the same disposition towards the general

government." The Federalist No. 28 at

179 (A. Hamilton) (J. Cooke Ed. 1961).

In a viable federal system, the power

retained by the States will serve as a

check on the national government exceed-

ing the outer limits of its authority.

This balance of power is upset when the

States lose their retained sovereign

rights.

This Court has recently recognized

the importance of Madison's "double

security." In Gregory v Ashcroft, 501 US

, 115 L Ed 2d 410, 423 (1991), Justice

O'Connor writing for the majority

concluded:

-16-

If this "double security" is to be

effective, there must be a proper

balance between the States and the

Federal Government. These twin pow-

ers will act as mutual restraints

only if both are credible. In the

tension between federal and state

power lies the promise of liberty.

In passing the 1985 Act, Congress has

exceeded constitutional restraints on its

authority. Michigan urges this Court to

apply those restraints, thereby re-

establishing the proper constitutional

balance.

Congress does not have unlimited

power under its delegated Commerce Clause

authority to intrude on the sovereignty

of the independent States. This Court

has struggled with defining those limits

Since National League of Cities v Usery,

426 US 833 (1976). In Usery, this Court

adopted what has become known as_ the

ol Je

"traditional governmental functions" doc-

trine as the means by which Courts should

determine if Congress has exceeded its

Commerce Clause authority by intruding on

State sovereignty. The difficulties

inherent in applying the traditional gov-

ernmental functions doctrine became

apparent during the years following the

Usery decision. Finally, in Garcia this

Court repudiated the traditional govern-

mental functions test as unworkable.

Our examination of this "function"

standard applied in these and other

cases over the last eight years now

persuades us that the attempt to draw

the boundaries of state regulatory

immunity in terms of "traditional

governmental function" is not only

unworkable but is also inconsistent

with established principles of feder-

alism and, indeed, with those very

federalism principles on which

National League of Cities purported

to rest. That case, accordingly, is

overruled.

Garcia, 469 US at 531.

The traditional governmental functions

doctrine was repudiated at the same time

-~18-

that the majority affirmed the principles

of federalism and state sovereignty.

[T)he text of the Constitution pro-

vides the beginning rather than the

final answer to every inquiry into

questions of federalism, for

"[bjehind the words of the constitu-

tional provisions are postulates

which limit and control." [citations

omitted) National League of Cities

reflected the general conviction that

the Constitution precludes "the

National Government {from}

devour[ing] the essentials of state

sovereignty." [citations omitted }

In order to be faithful to the under-

lying federal premises of the Consti-

tution, Courts must look for the

"postulates which limit and control."

What has proved problematic is not

the perception that the Constitu-

tion's federal structure imposes

limitations on the Commerce werd

rather the nature and content of

those limitations.

Garcia, 469 US at 547.

(Emphasis added).

After rejecting the traditional govern-

mental functions doctrine articulated in

Usery which had been based upon the Tenth

-19-

Amendment, this Court in Garcia struggled

with the language of the Tenth Amendment

which on its face does not appear to sup-

port any affirmative limit on Congres-

Sional power. Deborah Jones Merritt, The

Guarantee Clause and State Autonomy:

Federalism for a Third Century, 88

Columbia Law Review 1, 12 (1988). In

fact, the Court previously recognized

that the Tenth Amendment language "states

but a truism that all is retained which

has not been surrendered." United States

v Darby, 312 US 100, 124 (1941).

In its efforts to determine the limi-

tations on the Commerce Clause the major-

ity in Garcia developed the political

process doctrine. Unlike the traditional

governmental functions doctrine developed

in Usery, the political process doctrine

-20-

does not appear to be rooted in any con-

stitutional mandate. Rather, it is based

Principally upon the federal structure

itself. |

In short, the Framers chose to rely

on a federal system in which special

restraints on federal power over the

States inhered principally in the

workings of the National Government

itself, rather than in discrete limi-

tations on the objects of federal

authority. State sovereign inter-

ests, then, are more properly pro-

tected by procedural safeguards

inherent in the structure of the fed-

eral system than by judicially cre-

ated limitations on federal power.

Garcia, 469 US at 552.

The majority in Garcia did not hold

that the political process doctrine was

the only means of protecting a State's

sovereign interests against the intrusion

of Congress under its Commerce Clause

authority. The initial enunciation of

the political process doctrine in Garcia

states:

“e2l1-

: the principal means chosen by

the Framers to ensure the role of the

States in the federal system lies in

the structure of the Federal Govern-

ment itself.

Garcia, 469 US at 550-551.

(Emphasis added).

By speaking in terms of "principal means"

in commencing its discussion of the

political process doctrine, the majority

was indicating that the doctrine is not

the exclusive means for protecting State

sovereignty. The Court recognized this

fact when, at the conclusion of its dis-

cussion of the doctrine, it stated:

Of course, we continue to recognize

that the States occupy a special ana

specific position in our constitu-

tional system and that the scope of

Congress' authority under the

Commerce Clause must reflect that

position. But the principal and

basic limit on the federal commerce

power is that inherent in all con-

gressional actions--the built-in

restraints that our system provides

through state participation and fed-

eral governmental action.

Garcia, 469 US at 556.

(Emphasis added).

-22-

By characterizing the political proc-

ess doctrine as the "principal limit" the

Court necessarily implies that there are

other limits as well. In fact, the Court

explicitly determined that under the spe-

cific facts of Garcia it need not "define

what affirmative limits the constitu-

tional structure might impose on federal

action affecting the States under the

Commerce Clause." Garcia, 469 US at 556.

The 1985 Act compels this Court to define

those limits.

Justice Brennan in South Carolina v

Baker, 485 US 505, S12 (1989) (plurality

Opinion), did Suggest that Garcia stands

for the proposition that the political

Process doctrine is the exclusive protec-

tor of State Sovereignty against intru-

Sion by Congress, but this reading

o23-

ignores the analysis discussed above.

Justice Scalia concurring in part and

concurring in the judgment in South

Carolina states that Justice Brennan's

conclusion that the "National Political

Process" is the State's only constitu-

tional protection "misdescribes" the

holding in Garcia. South Carolina, 485

US at 528.

In fact, the majority in Garcia did

recognize the existence of limits on the

Federal Government's power to interfere

with State functions. Garcia, 469 US at

547. Furthermore, the majority even rec-

ognized some constitutionally mandated

limits on Congress' power.

With rare exceptions, like the

guarantee, in Article IV, § 3, of

state territorial integrity, the

Constitution does not carve out

express elements of state sovereignty

that Congress may not employ its

delegated powers to displace.

Garcia, 469 US at 550.

-24-

While recognizing that such exceptions

are rare, Michigan asserts that one such

exception is the Guarantee Clause in art

IV, § 4 guaranteeing to every State in

the Union a republican form of govern-

ment.

II

CONGRESS HAS EXCEEDED LIMITS IMPOSED

UPON IT BY THE GUARANTEE CLAUSE IN

ITS ENACTMENT OF THE 1985 ACT.

‘The 1985 Act was promulgated pursuant

to Congress' delegated Commerce Clause

authority. No other constitufional

predicates such as the Spending Clause or

the Civil War Amendments justify

Congress' intrusion on State sovereignty.

It has been held that the regulacion of

the disposal of low-level radioactive

waste implicates the Commerce Clause.

Philadelphia v New Jersey, 437 US 617

o2G~

(1978), and Washington State Building and

Construction Trades Council v Spellman,

684 F2d 627 (9th Cir. 1982), cert denied

461 US 913 (1983). However, with the

1985 Act Congress has gone beyond simply

regulating commerce and has mandated that

States take responsibility for the LLRW

generated primarily by private entities

and to a lesser extent by the federal

government. The 1985 Act compels a sov-

ereign State not just to regulate LLRW in

lieu of federal regulation, but actually

to engage in a specifically identified

type of commerce.

This Court has recognized that

"([t)here is no indication of a constitu-

tional plan to limit the ability of the

States themselves to operate freely in

the free market." Reeves, Inc. v Stake,

-26-

447 US 429, 437 (1980). Michigan asserts

that there is also no indication of a

constitutional plan to permit Congress to

mandate that a State operate in the free

market. It is the compulsion to engage

in this commerce which Michigan asserts

intrudes upon its sovereignty. Specifi-

cally, the Congressional mandate that

sovereign States exercise their legisla-

tive and executive powers to engage in

the commerce of LLRW disposal impinges

upon the guarantee expressed in the

United States Constitution of a republi-

can form of government. The compulsion

contained within the 1985 Act makes the

legislative and executive branches of a

sovereign State answerable not to the

people who have elected these bodies, but

to the United States Congress who is man-

dating these bodies to implement federal

policy.

aSFe

While the mandate to engage in the

commerce of LLRW disposal by itself

intrudes upon a State's sovereignty, the

so-called "take title" and liability pro-

visions of the 1985 Act make the intru-

sion on State sovereignty even more

egregious. This provision of the 1985

Act, 42 USC § 202le(d)(2)(C), requires

that if States are unable to engage in

the commerce oof LLRW' disposal . by

January 1, 1996, they must accept from

private and federal generators of LLRW,

both title to the LLRW and liability for

all damages directly or indirectly

related to the LLRW. This draconian

punitive measure totally ignores the

States' sovereignty. A review of the

legislative history of the 1985 Act

reveals the unprecedented punitive nature

of this provision. Senator J. Bennett

-26- -29-

Johnston, co-sponsor of the 1985 Act One of the more controversial provi-

sions in the Senate Bill relates to

stated: States assuming title and liability

for waste in 1996 and requires states

to reimburse generators for. sur-

This language insures that the State charges. I have requested the Con-

will ek be anion to avoid the finan- gressional Research Service to aa |

Cial consequences of failure to pro- the constitutionality of “* :

vide adequately for the disposal of requirement. Their findings, } le

its low-level radioactive waste, even study dated December 16, 1985 sti-

though it may find a way to avoid that these provisions raised =— a

taking title or possessicn in a tutional issues under the Ten ee

timeiy manner .. . In the context Eleventh Amendments. I agree.

of this amendment, the term "damages"

includes both actual and punitive

damages from actions taken against a

generator or owner of waste .

x**

That means that if some generator of

nuclear waste must close down, for

example, by reason of failure of the

State to accept possession and title

to this nuclear waste then the State

is responsible for all damages ...

It is a very far-reaching, difficult,

and punitive provision, but we mean

it to be precisely that. (emphasis

added ) Cong. Rec. 818113 (Dec. 19,

1985 Daily ed.) remarks of Senator

Johnston.

The punitive nature of the take title

cannot recall any statute which has

ever sought to impose such a liabil-

ity upon states. The provision may

not pass constitutional challenge...

(99 Cong. Rec., H 13077 Daily ed.

December 19, 1985).

If the mandates in the 1985 Act are

constitutional, there is nothing which

would prevent federal legislation mandat-

ing that each State take title to, assume

all iiability for, and provide for the

disposal of, all hazardous waste gener-

ated within its borders. In Michigan

during 1986 a total of 3,800,000 tons of

Provision appears to be unique among con-

hazardous industrial waste was generated

gressional enactments. Representative

Edward J. Markey stated:

-30-

compared to 383 tons of low-level radio-

active waste. Michigan contends that the

Principles of federalism embodied in the

United States Constitution do not contem-

Plate or permit such a fundamental shift

of liability from the Private sector to a

sovereign State. On the contrary, the

United States Constitution contains spe-

Cific language Protecting the sovereignty

of States and Precluding the imposition

Of such onerous responsibilities which

stem not from the actions of the State,

but from Private entities.

The Guarantee Clause of the United

States Constitution set forth at Art [v

§ 4 provides, in part, as follows:

The United States Shall guarantee to

every State in this Union a -

can Form of Government , —

A republican government was defined by

Associate Justice Wilson in Chisholm vy

@3i<

Georgia, 2 U.S. (2 Dall.) 419 (1793). In

reference to the State of Georgia,

Justice Wilson stated that "I know the

Government of that State to be republi-

can; and my short definition of such a

Government is,--one constructed on this

principle that the Supreme Power resides

in the body of the people." Chisholm, 2

U.S. (2 Dall.) at 457. In In re Duncan,

139 US 449, 461 (1891), Chief Justice

Fuller writing for a unanimous Court dis-

cussed the distinguishing features of a

republican form of government:

By the Constitution, a republican

form of government is guaranteed to

every State in the Union, and the

distinguishing feature of that form

is the right of the people to choose

their own officers for governmental

administration, and pass their own

laws in virtue of the legislative

power reposed in representative

bodies, whose legitimate acts may be

said to be those of the people them-

selves; but, while the people are

thus the source of political power,

their governments, National and

=) =

State, have been limited by written

constitutions, ard they have them-

selves thereby set bounds to their

Own power as against the sudden

impulses of mere majorities.

Chandler, Enslen and Renstrom, The

Constitutional Law Dictionary, Volume I,

P- 56 (1985), defines republicanism as:

Doctrine of government by the people

through majority rule . ;

Thus, the essence of a republican form of

government is one in which the people

choose their rulers and through their

rulers pass their own laws through the

majoritarian process. The Constitution

guarantees to the people this form of

government by guaranteeing it to every

State in the Union.

Professor Deborah Jones Merritt in

her article, The Guarantee Clause and

-33-

State Autonomy: Federalism for a Third

Century, 88 Columbia Law Review 1 (1988),

has extensively and perceptively analyzed

the justification for relying upon the

Guarantee Clause as a restraint on fed-

eral power to interfere with State

autonomy. Professor Merritt concludes

that "the states cannot enjoy republican

governments unless they retain sufficient

autonomy to establish and maintain their

own forms of government." Merritt, 88

Columbia Law Review at 2. After discuss-

ing the Garcia opinion, Professor Merritt

further concludes: "It is preferable to

rest determination of federalism issues

on a specific constitutional command,

such as the guarantee clause, than on

notions of political accountability that

find no support in the constitutional

text." 88 Columbia Law Review at 21,

-34<

n. 118. Professor Tribe has Similarly

Suggested using the Guarantee Clause.

L. Tribe, American Constitutional Law,

(2nd Ed), § 5-23, pp 397-398 (1988).

Michigan urges this Court to adopt the

analysis in Professor Merritt's compre-

hensive and thoughtful article and recog-

nize that the Guarantee Clause imposes

restraints upon federal power to inter-

fere with State autonomy.

Professor Merritt concludes that the

Guarantee Clause has two aspects: "On

the one hand, the clause prohibits the

States from adopting non-republican forms

of government. On the other hand, as

long as the states adhere to republican

Principles the clause forbids the federal

government from interfering with state

governments in a way that would destroy

-35-

their republican character." Merritt, 88

Columbia Law Review at 25. Professor

Merritt bases this conclusion on an

analysis of both the text of the Guaran-

tee Clause and upon its history. See

Merritt, 88 Columbia Law Review at 22-36.

She forcefully argues that "the citizens

of a state cannot operate a republican

government, ‘choose[ ing] their own

officials' and '‘enactf{ing] their own

laws,' if their government is beholden to

Washington." Merritt, 88 Columbia Law

Review at 25, citing the Federalist No.

39 at 251 (J. Madison) (J. Cooke Ed.

1961). In the context of the 1985 Act, a

State cannot enjoy a republican form of

government when, in the absence of any

other constitutional predicate, the

Congress under its Commerce’ Clause

authority usurps the legislative and

-36-

executive branches of a State government

for its own policies.

This Court's decision in Luther v

Borden, 48 US (7 How.) 1 (1849), Suggests

that a challenge to the 1985 Act based

upon the Guarantee Clause is not justici-

able. Professor Merritt makes a convinc-

ing case that a Guarantee Clause claim

based upon allegations of intrusions upon

State autonomy is justiciable. Professor

Merritt concludes that "neither Supreme

Court precedent nor considerations of

policy foreclose adjudication of claims

that the Federal Government has violated

the Guarantee Clause by intruding upon

State autonomy." Merritt, 88 Columbia

Law Review at 70-71. This Court has

recently recognized that the Guarantee

Clause imposes limits on judicial review

of State action.

a37e

This rule is no more than ... a

recognition of a State's constitu-

tional responsibility for the estab-

lishment and operation of its own

government, as well as the qualifica-

tions of an appropriately designated

class of public office holders. US

Const. Art. IV, § 4; US Const. Amdt.

X [further citations omitted]

Gregory, 115 L Ed 2d at 425.

Michigan contends that Congress should

Similarly be constrained in the exercise

of its Commerce Clause authority in the

absence of constitutional predicates jus-

tifying intrusion upon State sovereignty.

‘

A majority of this Court has cited a

portion of Professor Merritt's article

which asserts that the Guarantee Clause

directly commands that States have the

ability to set qualifications for their

government offices by promising the

States a republican form of government.

Gregory, 115 L Ed 2d at 422. Michigan

a

-~38-

now urges this Court to consider the

analysis by Professor Merritt in that

section of her article entitled "Employ-

ing the States as Agents of the Nation"

as it relates to the Commerce Clause

authority of the united States Congress.

Merritt, 88 Columbia Law Review at 60-70.

Federal attempts to appropriate

State governmental resources in this

manner deny the states a republican

form of government. In a republican

government, all power derives from

the voters. The citizens in a repub-

lican state decide when to exercise

their legislative or executive power

and how to wield that authority. If

the federal government forces the

States to adopt a statute, it

destroys this relationship between

State voters and their representa-

tives: State legislators become

accountable to Congress, rather than

to their constituents. Similarly, if

the national government compels the

States to enforce federal regulatory

Programs, state budgets and executive

resources reflect federa] Priorities

rather than the wishes of local

citizens. These results are anti-

thetical to the popular control

exerted in a republican form of

government.

Merritt, 88 Columbia Law Review at

61. (footnote omitted).

-39-

Professor Merritt argues that federal

attempts to appropriate State governmen-

tal resources by compelling States to

exercise their legislative or executive

authority to implement federal programs

destroys the relationship between the

State voters and their representatives.

She argues that State legislators become

accountable to Congress rather than to

their constituents, thus denying the

States a republican form of government.

Merritt, 88 Columbia Law Review at 61.

This Court has suggested that this type

of compulsion by the federal government

over State legislative or executive

authorities is constitutionally infirm.

While this Court has not explicitly

used this Guarantee Clause analysis in

evaluating Congressional enactments, the

analysis is consistent with the rationale

_Y

and result in several decisions. For

example, in South Dakota v Dole, 483 US

203 (1987), the Court concluded that

Congress' authority under the Spending

Clause is not unlimited and is affected

by five conditions. South Dakota, 483 US

at 207. The fifth recognized limit was

that "the financial inducement offered by

Congress might be so coercive as to pass

the point at which ‘pressure turns into

compulsion.'" (citation omitted). South

Dakota, 483 US at 211. In Hodel v

Virginia Surface Mining & Reclamation

Ass'n, 452 US 264 (1981), this Court

stated:

If a state does not wish to submit a

proposed permanent program that com-

plies with the Act and implementing

regulations, the full regulatory bur-

den will be borne by the Federal

Government. Thus, there can be no

suggestion that the Act commandeers

the legislative processes of the

States by directly compet iing them to

enact and enforce a federal regula-

afi «

tory program. (citations omitted).

Hodel, 452 US at 288.

(Emphasis added).

The Court concluded that the conditional

preemption in Hodel was not so compulsive

as to intrude on a State's sovereignty.

In FERC v Mississippi, 456 US 742

(1982), the State of Mississippi chal-

lenged the Public Utility Regulatory

Policies Act of 1968 (PURPA) which was

part of a package of legislation to com-

bat the nationwide energy crisis.

Mississippi asserted the requirements in

Titles I and III of PURPA that the States

consider specified rate-making standards

violated its sovereignty. The Court

noted that PURPA only required considera-

tion of federal standards and that if a

State stopped regulating in the utility

field it would not even have to consider

-42-

the standards. FERC, 456 US at 764.

This Court then held:

In short, Titles I and III do not

involve the compelled exercise of

Mississippi's sovereign powers and,

equally important, they do not set a

mandatory agenda to be considered in

all events by state legislative or

administrative decision makers. As

we read them, Titles I and III simply

establish requirements for continued

State activity in an otherwise pre-

emptible field.

FERC, 456 US at 769.

(Emphasis added, footnote omitted).

In South Carolina v Baker, 485 US 505

(1989), South Carolina challenged § 310

of the Tax Equity and Fiscal Responsibil-

ity Act of 1982 (TEFRA) which removed a

federal income tax exemption for bonds

issued by States and local governments

unless those bonds were issued in a

registered form. This meant that for

States to continue to offer lower inter-

est rates and remain competitive in the

-43-

bond market, they would have to issue

registered bonds. The removal of the

income tax exemption was part of a statu-

tory program to eliminate tax evasion.

Section 310 of TEFRA ". . . covers not

only state bonds but also bonds issued by

the United States in private corpora-

tions." Baker, 485 US at 510. Thus,

unlike the 1985 Act, TEFRA was not

directed exclusively at the States. In

finding § 310 constitutional, the Court

stated:

Because by hypothesis, § 310 effec-

tively prohibits issuing unregistered

bonds, it presents the very situation

FERC [v Mississippi, 456 US 742

(1982)]) distin onan from a com-

mandeering of state regulatory

machinery: the extent to which the

Tenth Amendment "shields" the states

from generally applicable regula-

tions. (citations omitted)

Baker, 485 US at 514.

(Emphasis added).

Thus, in Baker, this Court used a similar

analysis to FERC and found that there was

-44-

not a commandeering of State powers.

Even in Garcia the majority recog-

nized that to the extent left open to

them by the Constitution States must be

free from this form of compulsion.

The essence of our federal system is

that within the realm of authority

left open to them under the Consti-

tution, the States must be equally

free to engage in any activity that

the citizens choose for the common

weal, no matter how unorthodox or

unnecessary anyone ' else--including

the judiciary--deem state involvement

to be.

Garcia, 469 US at 546.

The 1985 Act is a statute aimed

exclusively at the States, mandating that

they carry out and implement a federal

policy for LLRW disposal. This mandate

inevitably requires States to exercise

their legislative and executive powers in

order to comply with their disposal

=@Ge

responsibility for all LLRW generated

within their respective borders.

By imposing the burden for the dis-

posal of low-level radioactive waste upon

the States, the 1985 Act requires

Michigan's legislature to pass laws, to

utilize the State's credit to provide for

the disposal of LLRW, to take title to

the LLRW, and to assume all liability

arising from the LLRW. This federal

edict directly appropriates Michigan's

credit, and indirectly that of its citi-

zens, to cover a liability which right-

fully belongs to the private proprietary

and federal generators of LLRW. It con-

sequently places Michigan's Treasury at

an enormous risk without giving Michigan

any choice in this decision. It directly

compels Michigan to extend its credit in

=46-

aid of private entities who no longer

need take any responsibility for their

waste. This compulsion directly contra-

venes Michigan's Constitution, Art IX,

§ 18 which provides:

Sec. 18. The credit of the state

shall not be granted to, nor in aid

of any person, association or cor-

poration, public or private, except

as authorized in this Constitution.

The expenditure of funds and the

utilization of its credit by Michigan to

implement the federal government's LLRW

disposal policy originally set forth in

the 1980 Act and made mandatory by the

1985 Act reflects the priorities of

Congress rather than the priorities of

Michigan citizens and thus works a denial

of a republican form of government in

violation of the Guarantee Clause.

Michigan's executive and legislative

o47<

branches have been made the agents of the

federal government rather than represen-

tatives of the Michigan citizens. By

being accountable to the federal govern-

ment rather than its own citizens the law

denies Michigan citizens the popular con-

trol exerted in a republican form of

government.

The Guarantee Clause is a vital ele-

ment in the federal structure of the

United States. It guarantees that in

areas of power reserved to the States the

majority will of the people shall pre-

vail. It is part and parcel of the

"double security" recognized by Madison.

Its protection insures that the "double

security" continues to exist. A similar

check on power is inherent in the balance

of power between the three branches of

-48-

the federal government. This Court has

been reluctant to allow a deviation from

this balance of power as established in

the Constitution even where the shift of

the power is agreed upon between the par-

ties in question. For example, in INS v

Chadha, 469 US 919 (1983), Congress and

the President had both consented to a

statutory provision authorizing one house

of Congress to veto an executive deci-

sion. The Court stressed the importance

of checking abuses of political power in

invalidating this provision. INS, 469 US

at 946-951, 959. In the instant case,

the Court of Appeals has applied the

political process doctrine from_ the

Garcia case in a review of the 1985 Act.

When, as in this case, the statute in

question significantly shifts the balance

of power from the States to Congress,

afte

Michigan urges this Court to conclude

that it infringes upon the rights gquaran-

teed to States under the Guarantee

Clause. The Court of Appeals' decision

in the instant case was based upon a

restrictive reading of the opinion in

Garcia. It read Garcia as holding that

the only protection for state sovereign

interests is ". by procedural safe-

guards inherent in the structure of the

federal system..." 469 US at 552.

Michigan contends that Garcia need not

and should not be read so restrictively.

=x’

CONCLUSION

For the reasons noted in this brief,

Michigan urges that the Court declare the

1985 Act, in toto, unconstitutional as a

violation of the Guarantee Clause of the

United States Constitution, Art IV, § 4.

Respectfully submitted,

FRANK J. KELLEY

Attorney General of the

State of Michigan

Gay Secor Hardy

Solicitor General

Counsel of Record

P. O. Box 30212

Lansing, Michigan 48909

(517) 373-1124

Thomas L. Casey

A. Michael Leffler

John C. Scherbarth

Assistant Attorneys General

Dated: February 13, 1992