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

Supreme Court, U.5.

i oO)

———_ ei rr. aa

No. 91-543; 91-558; 91-563

In The

Supreme Court Of The United States

October Term, 1991

5

THE STATE OF NEW YORK.

Petitioner

V.

THE UNITED STATES OF AMERICA;

JAMES D. WATKINS, as Secretary of Energy;

KENNETH M. CARR, as Chairman of the United States

Nuclear Regulatory Commission;

THE UNITED STATES NUCLEAR REGULATORY COMMISSION,

SAMUEL K. SKINNER, as Secretary of Transportation; and

WILLIAM P. BARR, as United States Attorney General,

Respondents

The State of Washington; The State of Nevada; and

The State of South Carolina

Intervenor-Respondents

+

On Writs of Certiorari to the

U.S. Court of Appeals for the Second Circuit

+

BRIEF OF THE STATE OF CONNECTICUT

AS AMICUS CURIAE IN SUPPORT OF

PETITIONER STATE OF NEW YORK

+

RICHARD BLUMENTHAL * AARON S. BAYER

ATTORNEY GENERAL Deputy Attorney General

State of Connecticut William B. Gundling

55 Elm Street Associate Attorney General

Hartford, CT 06106 Charles Walsh

(203) 566-2026 Assistant Attorney General

‘Counsel of Record

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES il

INTEREST OF THE AMICUS CURIAE l

SUMMARY OF ARGUMENT 5

ARGUMENT 7

I. THE 1985 AMENDMENTS EXCEED THE

AFFIRMATIVE LIMITS WHICH THE CON-

STITUTION IMPOSES ON CONGRESSIONAL

ACTION AFFECTING THE STATES 7

~

A. THIS COURT'S TENTH AMENDMENT

DECISIONS HAVE PRESERVED CERTAIN

AFFIRMATIVE LIMITS TO CON-

GRESSIONAL POWER UNDER THE

COMMERCE CLAUSE 8

B. THE COERCIVE NATURE OF THE 1985

AMENDMENTS DESTROYS THE DIGNITY

AND SOVEREIGN POWER OF THE STATES

AND EXCEEDS THE AFFIRMATIVE LIMITS

ON CONGRESSIONAL ACTION PRESERVED

IN GARCIA AND BAKER 1]

Il. THE NATIONAL POLITICAL PROCESS FAILED

TO PROTECT THE STATES FROM UNDULY

BURDENSOME FEDERAL REGULATION, AS

ASSUMED BY THIS COURT IN GARCIA 16

CONCLUSION 23

TABLE OF AUTHORITIES

CASES Page(s)

Atascadero State Hospital v. Scanlon, 473 US.

234 (1985) 22

Brown v. EPA, 521 F.2d 837 (9th Cir. 1975), vacated

and remanded sub nom. EPA v. Brown, 431 U.S.

99 (1977) 13

Commonwealth Edison Co. v. Allied-General Nuclear

Servs., 731 F.Supp. 850 (N.D.IIL 1990) 12

Coyle v. Smith, 221 U.S. 559 (1911) 16

District of Columbia v. Train, 521 F.2d 971 (DC. Cir.

1975), vacated and remanded sub nom. EPA

v. Brown, 431 U.S. 99 (1977) 13

Federal Energy Regulatory Com'n. v. Mississippi,

456 U.S. 742 (1982) 10, 11, 12, 13, 14

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528 (1985) passim

General Elec Uranium Corp. v. United States Dept.

of Energy, 764 F.2d 896 (DC. Cir. 1985) 12

Gregory v. Ashcroft, U.S. , 111 S.Ct. 2395

(1991) 22

Hodel v. Virginia Surface Mining & Reclamation

Ass'n. Inc., 452 U.S. 264 (1981) 11, 12, 13, 14

Maryland v. EPA, 530 F.2d 215 (4th Cir.. 1975),

vacated and remanded sub nom. EPA v. Brown,

431 U.S. 99 (1977) 13

TABLE OF AUTHORITIES (continued)

CASES Page(s)

National League of Cities v. Usery, 426 U.S.

833 (1976) &

New York v. United States, 326 U.S. 572 (1946) 17, 20

Pacific Gas & Electric v. State Energy Resources

Commission, 461 U.S. 190 (1983) 18, 19

Simmons v. Arkansas Power & Light Co., 655 F.2d

131 (8th Cir. 1981) 18

South Carolina v. Baker, 485 U.S. 505 (1988) passim

South Dakota v. Dole, 483 U.S. 203 (1987) 13, 14

State of N.Y. v. U'S., 942 F.2d 114 (2nd Cir.

1991) 6, 7. 8, 12. 17

Steward Machine Co. v. Davis, 301 U.S. 548

(1937) 14

United States v. Butler, 297 U.S. 1 (1936) 13

United Transportation Union v. Long Island R. Co.,

455 —.S. 678 (1982) 14

Vermont Yankee Nuclear Power v. Natural Resources

Defense Council, 435 U.S. 519 (1978) 15, 18

UNITED STATES CONSTITUTION

Article I, §&, cl.1. 13, 14

Article I, §&, cl.3 8, 9, 16, 17

TABLE OF AUTHORITIES (continued)

UNITED STATES CONSTITUTION Page(s)

Tenth Amendment passim

FEDERAL STATUTES

Atomic Energy Act of 1954, 42 U.S.C. §2011

et seq. l

Clean Air Act, as amended by the Clean Air

Amendments of 1970, 42 U.S.C. §1857

et seq. 13

Fair Labor Standards Act, 29 U.S.C. 201 et seg. 8, 11, 14

Low-Level Radioactive Waste Policy Act of 1980

P.L. 96-513, 94 Stat. 3347 17

Low-Level Radioactive Waste Policy Amendments Act

of 1985, PL. 99-240, 42 U.S.C. §2021b

et. seq. passim

Nuclear Waste Policy Act of 1982, 42 U.S.C. §10101

et seq. 12

Public Utilities Regulatory Policies Act of 1978,

Pub. L. 95-617, 92 Stat. 3117 11, 14

Surface Mining Control and Reclamation Act of 1977,

30 U.S.C. §1201 et seq. 11, 14

Tax Equity and Fiscal Responsibility Act of 1982,

Pub. L. 97-248, 26 U.S.C. 103())(1) 11, 14

42 U.S.C. 2013(d) l

iv

TABLE OF AUTHORITIES (continued)

FEDERAL STATUTES Page(s)

42 U.S.C. 2021(c) 15, 19

42 U.SC. 2021b ]

42 U.S.C. 202 1e(b) 20

42 U.S.C. 2021¢(2)(1)B) 15

42 U.S.C. 202 le(d)(2)(C) 7

42 USC. 202 lele) 4

STATE STATUTES AND REGULATIONS

§ 22a-134bb, Conn. Gen. Stat. 2

§ 22a-134ff, Conn. Gen. Stat. 2

§ 22a-137, Conn. Gen. Stat. 2

§22a-161, Conn. Gen. Stat. 2

§ 22a-163, Conn. Gen. Stat. 2

§ 22a-163a-w, Conn. Gen. Stat. 2

§ 22a-164, Conn. Gen. Stat. 2

§ 22a-165, Conn. Gen. Stat. 2

§ 22a-165a-f, Conn. Gen. Stat. 2

Connecticut Agency Regulations §22a-163f-1 through

f-10 2

TABLE OF AUTHORITIES (continued)

STATE STATURES AND REGULATIONS Page(s)

Connecticut Agency Regulations §22a-1631-1 2

Connecticut Agency Regulations §22a-163t 2

Connecticut Agency Regulations (proposed)

§ 22a-163f-100 through 22a-163f-107 2

Connecticut Agency Regulations (proposed)

§ 22a-1630-1 2

OTHER AUTHORITIES

131 Cong. Rec. $.18,105-6 (daily ed. Dec. 19, 1985) 19

131 Cong. Rec. $.18,113 (daily ed. Dec. 19, 1985) 18

131 Cong. Rec. $.18,114 (daily ed. Dec. 19, 1985) 20

Congressional Research Service, “Constitutional Issues

Raised By the Imposition of Liabilities on the States

Under A Proposed Amendment to the Low-Level

Radioactive Waste Policy Act of 1980,” Report to

the House Committee on Energy and Commerce,

Subcommittee on Energy Conservation and

Power (December 16, 1985) 18

Connecticut Hazardous Waste Management Service,

“Low-Level Radioactive Waste Management in

Connecticut — 1990” (January 1992) 1. 2. 15

Connecticut State Register and Manual, 1991 3

S. Rep. No. 199, 99th Cong., Ist Sess. 15

vl

TABLE OF AUTHORITIES (continued)

OTHER AUTHORITIES Page(s)

Madison, “The Federalist No. 45” (C. Rossiter ed.

1961) 22

Merritt, “he Guarantee Clause and State Autonomy:

Federalism for a Third Century” 88 Colum.L. Rev.

1 (1988) 21

U.S. Department of Energy “Report to Congress in

Response to Public Law 99-240, 1988 Annual Report

on Low-Level Radioactive Waste Management

Progress,” (1989) 21

United States General Accounting Office, “Nuclear

Waste: Slow Progress Developing Low-Level

Radioactive Waste Disposal Facilities,” Report

to the Chairman, Committee on Governmental

Affairs, U.S. Senate (January 1992)

(GAO/RCED-92-61) 4

Vil

INTEREST OF THE AMICUS CURIAE

Following Congress’ lead “to encourage widespread par-

ticipation in the development and utilization of atomic energy

for peaceful purposes . . .” (42 U.S.C. §2013(d)), the U.S. Nuclear

Regulatory Commission (N RC) licensed and continues to regu-

late the radioactive hazard of four nuclear powered generat-

ing stations in Connecticut. These nuclear power plants are

co-owned by a consortium of private, investor owned utility

companies located in different states. They provide electric-

ity on an interstate basis to all of New England.

A by-product of the nuclear generation of electrical energy

is nuclear waste — high-level radioactive waste and low-level

radioactive waste. The federal government has accepted

responsibility for the disposal of high-level radioactive waste

and low-level radioactive waste above Class C. Congress, how-

ever, through the Low-level Radioactive Waste Policy Amend-

ments Act of 1985 (the “1985 Amendments’) has imposed on

the States the responsibility for disposing of all Class A, B

and C low-level radioactive waste generated within their

borders. 42 U.S.C. §2021b et seg. The low-level radioactive

waste generated by the nuclear power plants located in Con-

necticut accounts for almost all of the low-level radioactive

hazard in this State.!

Under the 1985 Amendments, Connecticut is now respon-

sible for the disposal of all Class A, B and C low-level radio-

active waste created by the generation of electricity within

the State by privately owned utility companies which distrib-

ute electricity on an interstate basis. The State is also respon-

sible for the disposal of low-level radioactive waste produced

by private radioactive waste generators located in Connecti-

' Nuclear generating plants account for 99.9 percent of the low-level radi-

oactive hazard in Connecticut. Low-Level Radioactive Waste Management

in Connecticut — 1990, Figure 2-1, p. A-11 (1992) Connecticut Hazardous

Waste Management Service.

cut and certain low-level radioactive waste created by the fed-

eral government.?

If Connecticut fails to provide disposal capacity for all

of the above-mentioned waste by January 1, 1996, the 1985

Amendments Act requires the State to take title and posses-

sion of all low-level radioactive waste generated within Con-

necticut or assume liability for damages generators incur as

a result of the State's failure to dispose of such waste.* The

States may neither preclude, limit nor regulate the genera-

tion of low-level radioactive waste by these private entities.

The 1985 Amendments thus imposed a tremendous eco-

nomic and political burden on the State of Connecticut forc-

ing it to mobilize all of its sovereign powers to implement the

Act's requirements. The State's Legislature has enacted a ser-

ies of laws to implement the federal low-level radioactive waste

mandates.* The agencies of the Executive branch have promul-

gated extensive regulations to enable them to oversee and

administer the project.° The Connecticut Hazardous Waste

Management Service, the State authority charged with sit-

ing low-level radioactive waste disposal facilities, has already

* The States generate a minimal amount of low-ievel radioactive waste at

state-owned hospitals and universities. For example, the State of Connect-

icut generated only seven-tenths of one percent of the total volume of low-

level radioactive waste generated in the State and only one-thousandth of

one percent of the radioactive hazard. Low-Level Radioactive Waste

Management in Connecticut — 1990, p. A-8, Table 2-5 (1992) Connecticut

Hazardous Waste Management Service.

4 The States of Connecticut and New Jersey are the only two members

of the Northeast Compact. With one vote each, Connecticut and New Jer

sev will host their own facilities in each State.

4 Conn. Gen. Stat. 22a-134bb, 22a-134ff, 22a-137, 22a-161, 224-163, 22a-

163a-w, 22a-164, 22a-165, and 22a-165a-f.

> Regulations of Connecticut State Agencies (proposed) Sections

22a-163f-100 through 22a-163f-107 and 22a-1630-1. See also Regulations of

Connecticut State Agencies 22a-163f-1 through f-10, 22a-1631-1 and 2?a-163t

begun the monumental project of complying with Congress’

fiat that the States must dispose of low-level waste.®

The Attorney General of Connecticut supervises the pro-

vision of legal counsel to the Hazardous Waste Management

Service on the myriad laws and regulations that are involved

in implementing this Act. The judicial system in Connecti-

cut may be required to condemn residential and agricultural

land for the facility and will further be strained as the State

may be obliged to sue its own citizens — adjacent landowners

and citizens’ groups — for acts of civil disobedience in order

to implement the 1985 Amendments. Challenges to the State's

implementation of the federal statute will be heard in State

court at State expense.

The siting of low-level waste disposal facilities in Connect-

icut has already imposed — and will further impose — an enor-

mous burden on the State and its citizens.’ Each State in the

nation is unique with differing topographies, climates, geo-

logic characteristics and population densities.® The interplay

of the various characteristics in each State may make it ex-

® The plans already drawn up by the Connecticut Hazardous Waste

Management Service include Site Selection Plan, Comment Response Docu-

ment to the Draft Site Selection Plan, Draft Public Participation Plan, Draft

Site Screening Report, Draft Quality Assurance Plan, Draft Environmen-

tal Impact Study Plan, Draft Generic Site Characterization Plan and Low-

Level Radioactive Waste Management Updates.

” As of December 31, 1991, Connecticut had expended $6,200,000 on the

first stages of administering the low-level radioactive waste responsibili-

ties mandated by the 1985 Amendments ~ selecting a series of possible

sites for further testing.

® Connecticut is the second most densely populated State in the nation.

Three Connecticut towns were identified in June of 1991 by the Hazard-

ous Waste Management Service as potential sites for Connecticut's low-

level radioactive waste disposal facility. Forty-three thousand, three hun-

dred and sixty-eight people live in those towns (Connecticut State Regis-

terand Manual, 1991, Connecticut Secretary of State). The towns selected

as possible sites contain some of the only remaining prime farm land

in those areas

tremely difficult, if not impossible, for a particular State to

choose a suitable disposal site. Many homeowners in areas

which are designated as disposal sites will not be able to sell

their homes. Buyers will be unwilling to locate in proximity

of potential low-level radioactive waste disposal sites or will

be unable to obtain financing from reluctant lending institu-

tions. Affected citizens will have no ability to appeal to their

State government, as Congress has pre-empted all State

regulatory power while compelling the State itself to provide

for disposal of low-level radioactive waste.

The State of Connecticut is only one of at least fourteen

States that may be forced to host a facility.? Despite the

tremendous amount of State resources and revenues expended

to comply with the 1985 Amendments, the State's ability to

construct and operate a safe disposal site on a timely basis

is still uncertain.!° If a disposal site is not in operation in Con-

necticut by January 1, 1996, the 1985 Amendments will force

the State to “take title” and possession to all the Class A, B

and C low-level radioactive waste generated by privately owned

utility companies and other entities.

This brief is being filed on behalf of the State of Connect-

icut by its Attorney General and consent to its filing is not

required. U.S. Sup. Ct. R. 37.5.

9 Nuclear Waste — Slow Progress Developing Low-Level Radioactive Waste

Disposal Facilities, p. 12 (January 1992), U.S. General Accounting Office,

Report to the Chairman, Committee on Governmental Affairs, U.S. Sen-

ate, GAO RCED-92-61.

1° The State of Connecticut has already failed to file a complete applica

tion with the United States Nuclear Regulatory Commission by January

1, 1992, as required by 42 U.S.C. 202 le(e)1)(D). This failure subjects gener-

ators in the State of Connecticut to the triple surcharge penalty contained

in 42 U.SC. 202 le(e2.D). Those costs will be reflected in the costs of goods

which must ultimately be borne by the consumers in the State of Connect-

icut and elsewhere.

SUMMARY OF ARGUMENT

In 1985, Congress decided to punish those States that

were unable to comply with the directives of the Low-Level

Radioactive Policy Amendments Act of 1985. Although the

States are entirely pre-empted from regulating the generation

of low-level radioactive waste by private entities, the 1985

Amendments compel the States to provide for the disposal

of all such waste by January 1, 1996 or to take title and pos-

session of the waste and be liable for any damages resulting

from that waste. This statute reflects a unique and terribly

burdensome encroachment on State sovereignty not envi-

sioned by the framers of the Constitution.

This Court has recognized that there are some “affirma-

tive limits that the constitutional structure might impose on

federal action affecting the States,” Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 556 (1985). Such

limitations are particularly likely where Congress seeks to

coerce or compel State regulatory activity rather than extend

federal regulation to States. Nevertheless, relying on this

Court's decision in Garcia for the proposition that State sov-

ereignty is protected by the federal political process itself, the

Court of Appeals for the Second Circuit upheld the Low-Level

Radioactive Waste Policy Amendments Act of 1985.

This case represents a significant extension of Garcia and

subsequent Tenth Amendment cases for several reasons.

¢ Rather than imposing federal regulation on state activi-

ties, in an area which may or may not be a “traditional”

governmental function, Garcia, supra, 469 U.S. at 547,

Congress here has compelled the State itself to enter

the field of disposal of low-level radioactive waste, with

draconian consequences if it fails to do so.

¢ Congress here did not merely extend to State or local

governmental entities the same federal requirements

that are imposed on private entities, nor did it merely

compel States to impose federal standards or require-

ments on private businesses. Rather, in the 1985

Amendments, Congress imposed a unique and onerous

burden, not on the private or public entities that gener-

ate nuclear waste, but on the States themselves.

¢ A critical element of the statutes upheld in Garcia and

other cases against Tenth Amendment challenges is

notably absent from the 1985 Amendments. In previ-

ous federal programs reviewed by this Court, the States

retained the ultimate choice to refrain from regulatory

responsibilities in an area involving federal regulation

or from participation in federal programs. While the

choice of not participating in an important federal pro-

gram may have been an undesirable one for the States,

the choice was possible nonetheless. Under the 1985

Amendments, no State can choose to remove itself from

the field of low-level radioactive waste. It can neither

regulate nor prohibit production of such waste within

its borders. It is simply required, by Congressional fiat,

to provide for disposal of all Class A, B and C low-level

waste produced by private generators and some fed-

eral entities or take title to and possession of that waste.

In Garcia, the Court concluded that State participation

in the federal political process would “ensure that laws that

unduly burden the states will not be promulgated.” 469 U.S.

at 556. However, this is a case in which the federal political

process plainly did not protect State sovereignty in the man-

ner envisioned by this Court. Far from being a “paragon|| of

legislative success, promoting state and federal comity,” State

of New York v. United States, 942 F.2d 114, 119 (2nd Cir. 1991),

here Congress itself opted out of an extremely difficult polit-

ical and economic problem and imposed it on the States. Hav-

ing promoted nuclear power through federal policies and

having displaced the States from regulating in this field, Con-

gress squarely placed the burden of disposing of this waste

on the States themselves, notwithstanding the enormous

political and economic consequences for the States and their

localities. If the federal political process is sufficient to satisfy

the Tenth Amendment in this case, then the Constitution

places no limits on the draconian actions which Congress may

wish to take against the States.

ARGUMENT

I. THE 1985 AMENDMENTS EXCEED THE

AFFIRMATIVE LIMITS WHICH THE CONSTI.

TUTION IMPOSES ON CONGRESSIONAL

ACTION AFFECTING THE STATES.

In 1985, Congress decided to punish those States that

were unable to comply with the directives of the Low-Level

Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C.

§ 202 1b, et seq. (the 1985 Amendments). If by January 2, 1996,

a State were unable to provide for the disposal of all the low-

level radioactive waste generated within its borders, Congress

has directed that the ownership of the radioactive waste gener-

ated by private entities and some federal facilities would trans-

fer from the waste generators to the State itself. 42 U.S.C.

§ 202 le(d)(2)(c). Upon completion of the compelled transfer of

ownership to the State, the State would then either be required

to take possession of the radioactive waste or pay damages

to those entities that created the waste in the first instance.

This directive, known as the “take title” provision, is

unique in American law. Never before has Congress so com-

pletely disregarded State sovereignty, subjugating the States,

their residents, their treasuries and their sovereign govern-

ments to the service of private interests and federal regula-

tory goals.

Despite the unique and compulsory nature of the 1985

Amendments, the Second Circuit Court of Appeals in State

of New York v. United States, 942 F.2d 114 (2nd Cir. 1991),

determined that the “take title” provision “does not undermine

the constitutional structure” nor “does it violate principles

of federalism ...” Jd. at 121.

~

The Court based its decision on its determination that

the 1985 Amendments were enacted “only after robust debate

and a clearly articulated acceptance of NGA [National Gover-

nors’ Association] and other state-based recommendations.”

State of New York v. United States, Id., at 120. Relying on

this Court's decisions in Garcia v. San Antonio Metro. Tran-

sit Auth., 469 U.S. 528 (1985), and South Carolina v. Baker,

485 U.S. 505 (1988), for the proposition that State sovereignty

is protected by the national political process, the Court of

Appeals concluded that the 1985 Amendments did not vio-

late the constitution. New York v. United States, supra, 942

F.2d at 121.

The Court's decision seriously minimizes the constitu-

tional implications of the “take title” provision and fails to

consider this provision's destructive effect on State sover-

eignty. The Court's conclusions are a direct result of an overly

strict interpretation of the standard of review of Congressional

Commerce Clause power set forth by this Court in Garcia and

Baker.

A. This Court's Tenth Amendment Decisions Have Pre-

served Certain Affirmative Limits to Congressional

Power Under the Commerce Clause.

In Garcia v. San Antonio Metropolitan Transit Author-

ity, 469 U.S. 528 (1985), this Court reviewed the application

of the minimum wage and overtime requirements of the Fair

Labor Standards Act to a public mass-transit authority. Dis-

missing as unsound and unworkable the “traditional govern-

mental function” standard for review of federal actions under

the Tenth Amendment developed in National League of Cities

v. Usery, 426 U.S. 833, (1976) the Court determined that

“|s|tate sovereign interests .. . are more properly protected by

procedural safeguards inherent in the structure of the federal

system than by judicially created limitations on federal power.”

469 ULS. at 552.

Although Garcia ended the judicial search for “a priori

definitions” or “objective criteria for ‘fundamental elements

of state sovereignty .. .” in Tenth Amendment challenges, this

Court did not renounce the existence of all substantive

restraints on Congressional Commerce Clause power: “Of

course, we continue to recognize that the states occupy a spe-

cial and specific position in our constitutional system and that

the scope of Congress’ authority under the Commerce Clause

must reflect that position.” /d. at 548, 556. However, the par-

ticular “factual setting” in Garcia demonstrated that “the

internal safeguards of the political process have performed

as intended” and this Court was not required “to identify or

define what affirmative limits the constitutional structure

might impose on federal action affecting the states under the

Commerce Clause.” /d. at 556.

In South Carolina v. Baker, 485 U.S. 505 (1988), this Court

further developed the Tenth Amendment analysis articulated

in Garcia. Baker tested the constitutionality of a change in

the Internal Revenue Code removing the federal income tax

exemption for interest earned on unregistered long-term bonds

issued by private corporations, the United States and State

and local governments. The change in the law was intended

by Congress to reduce the tax evasion attributable to bearer

bonds and the removal of the income tax exemption effectively

precluded South Carolina from issuing those bonds. South

Carolina filed an original action in this Court claiming that

the Tax Code changes violated the Tenth Amendment. South

Carolina based its Tenth Amendment claim on its assertion

that “the political process failed . . . because Congress had no

concrete evidence” to support the new tax legislation and the

new law, as a remedy for tax evasion, was “ineffective™. /d.

at 512. This Court rejected that argument: “{N Jothing in Gar-

cia or the ‘Tenth Amendment authorizes courts to second-

guess the substantive basis for congressional legislation . . .

Where, as here, the national political process did not operate

in a defective manner, the Tenth Amendment is not impli-

cated.” Jd. at 513.

9

Although South Carolina's specific claims were rejected,

this Court again noted that “constitutional limitations” on

Congressional power “independent of those discussed in Gar-

cia” still exist. Jd. at 513. In this regard, the Court focused

its concern on Congressional action which commandeered

state regulatory machinery “to compel state regulatory activ-

ity” or “to control or influence the manner in which states regu-

late private parties”. Jd. at 514. After reviewing the tax statute

under the principles discussed in FERC v. Mississippi, 456

U.S. 742 (1982), the Court determined that the change in the

Tax Code did not commandeer the governmental machinery

of South Carolina. Instead, the statute merely regulated state

activity as part of a generally applicable federal regulatory

scheme:

Any federal regulation demands compliance. That a

state wishing to engage in certain activity must take

administrative and sometimes legislative action to

comply with federal standards regulating that activ-

ity is acommonplace that presents no constitutional

defect.

Id. at 514-515.

In Garcia, therefore, this Court specifically noted, with-

out identifying or defining them, the possibilities of “affirm-

ative limits” that “the constitutional structure might impose

on federal action affecting the States under the Commerce

Clause.” Garcia, supra 469 U.S. at 556. Again in South Caro-

lina v. Baker, 485 U.S. 505, 513 (1988), this Court “left open

the possibility” that there exist “constitutional limitations”

on Congress’ power over the States independent of the national

political process. Such limitations are particularly likely where

Congress seeks to coerce or compel particular state regula-

tory activity rather than extend existing federal regulation

to States.

10

B. The Coercive Nature of the 1985 Amendments

Destroys the Dignity and Sovereign Power of the

States and Exceeds the Affirmative Limits on Con-

gressional Action Preserved in Garcia and Baker.

This Court has often approved Congressional legislation

which directly affected State activities and operations. Legis-

lation applying a generally applicable regulatory scheme to

State activities was approved in Garcia and Baker. Federal

statutes that induced States to regulate private entities in

a manner which would further federal regulatory goals were

sustained in Hodel v. Virginia Surface Mining & Reclamation

Ass'n, Inc., 452 U.S. 264 (1981) and FERC v. Mississippi, 456

U.S. 742 (1982).'' The 1985 Amendments, however, differ fun-

damentally from any of the federal regulatory schemes affect-

ing State interests previously reviewed and approved by this

Court. Indeed, the onerous “take title” provision is a unique

form of coercion directed exclusively at the States as sover-

eign entities.

Unlike the Fair Labor Standards Act discussed in Gar-

cia, or the Tax Equity and Fiscal Responsibility Act of 1982

'l In Hodel this Court reviewed provisions of the Surface Mining Control

and Reclamation Act prescribing performance standards for surface coal

mining on steep slopes. Under the Act, if a State did not enact laws

implementing federal environmental standards, the Secretary of the Interior

would administer the Act's regulatory program for the State. The Court

rejected a Tenth Amendment challenge to the Act because the federal

requirements governed only the activities of private coal mine operators

and the States were free to refrain from participating in the federal regula-

tory program. 452 U.S. at 283-294.

FERC v. Mississippi considered a ‘Tenth Amendment challenge to provi-

sions of the Public Utility Regulatory Policies Act (PURPA) which required

the States to consider specified utility ratemaking standards and imposed

certain procedures on State regulatory commissions. In upholding the fed-

eral statutes the Court concluded that the States were free to abandon the

utility regulatory field and, thus, were not compelled to consider the fed-

eral standards or follow the federal procedures set torth in the Act. Con-

gress, through PURPA, simply established “requirements for continued

state activity in an otherwise pre-emptible field.” 456 U.S. at 769.

1]

examined in Baker, the 1985 Amendments do not simply

extend a generally applicable federal regulatory scheme to

state activities. Under the 1985 Amendments there is no

regulatory scheme which applies to private sector corpora-

tions, the federal government and the States for the disposal

of low-level radioactive waste — the disposal obligation is

imposed only on States. '?

Nor is this an instance where Congress has sought to

“influence” state regulation of private entities, as did the stat-

utes approved in Hodel v. Virginia Surface Mining & Recla-

mation Ass'n., Inc., supra, and FERC v. Mississippi, supra.

Instead, the 1985 Amendments compel the States to them-

selves commence disposing of low-level radioactive waste by

January 1, 1996 and, if they do not, to assume the ownership

and financial responsibility for the waste generated by pri-

vate corporations and the federal government.

Unlike the federal statutes reviewed by this Court in

Hodel, FERC v. Mississippi, Garcia, and Baker, the 1985

12 The Court of Appeals’ statement in State of New York v. United States

that the type of transfer of nuclear waste ownership mandated by the 1985

Amendments is “not uncommon” has no basis in fact. The take-title provi-

sion has no relation to the transfers of title to nuclear waste “usually effected

by contract”. 942 F.2d at 120. The Court's misplaced reliance on General

Elec. Uranium Corp. v. United States Dep't. of Energy, 764 F.2d 896 (DC.

Cir. 1985) and Commonwealth Edison Co. v. Allied-General Nuclear Servs.,

731 F.Supp. 850 (N.D. Ill. 1990) reflects its confusion between the volun-

tary contractual arrangements discussed in those cases and the compelled

transfer of title by Congressional edict contained in the 1985 Amendments.

The Court in General Elec. Uranium, 764 F.2d at 898, specifically noted

the voluntary nature of the contractual arrangements authorized under

Section 302 of the Nuclear Waste Policy Act. Likewise, the transfer dis-

cussed in Commonwealth Edison, 731 F.Supp. at 856, was a purely volun-

tary business arrangement: “It [Allied-General Nuclear Services] further

promised, in the latter event (that is, activation of the Facility Contingency

Plan), to take title to the spent nuclear fuel that Edison tendered for

reprocessing.”

The State of Connecticut has not volunteered to acquire, possess and dis-

pose or pay for the low-level radioactive waste generated within its borders

by private corporations and the federal government.

12

Amendments reflect Congressional action in a totally new and

different direction — compelling State action in a field the

States have not previously entered and in which private enti-

ties are not subject to the same Congressional compulsion.

The 1985 Amendments do more than commandeer “the legis-

lative process of the states by directly compelling them to

enact and enforce a regulatory program.” Hodel v. Virginia

Surface Mining & Reclamation Ass‘n., Inc., supra, 452 U.S.

at 288 Through the take-title provision, Congress has com-

manueered the States themselves, subjugating the States,

their machinery of government and their treasuries to private

waste generators. !3

This Court has never sanctioned the “compelled exercise”

of a State's “sovereign powers.” FERC v. Mississippi, supra,

456 U.S. at 769." To the contrary, this Court has recognized

choice as an essential element of State sovereignty.

us The 1985 Amendments’ requirement that States own and possess radi-

oactive waste is also far more intrusive on State dignity and power than

the EPA's Clean Air Act regulations reviewed by three Courts of Appeal

in Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), vacated and remanded

sub nom, EPA v. Brown, 431 U.S. 99 (1977); Brown v. EPA, 521 F.2d 837

(9th Cir. 1975), vacated and remanded. 431 U.S. 99 (1977): District of Colum-

bia v. Train, 521 F.2d 971 (DC. Cir. 1975), vacated and remanded sub nom

EPA v. Brown, 431 U.S. 99 (1977). In those eases. the regulations autho-

rized the EPA Administrator, in the event a State failed to submit an ade-

quate air pollution control plan, to develop a detailed federal plan and

compel States to implement it by enacting legislation and appropriating

funds. The three courts of appeals declined to construe the Act as allow-

ing EPA to compel State implementation of federal plans because of the

serious constitutional questions which the regulations raised. See Mary-

land v. EPA, 530 F.2d at 228: District of Columbia v. Train, 521 F.2d at

983-987; Brown v. EPA, 521 F.2d at 832-837.

'4 Under the Spending Clause, Congress may “attain broad policy objec-

tives not thought to be within Article I's ‘enumerated legislative fields’

through the use of ... the conditional grant of federal funds.” South

Dakota v. Dole, 483 U.S. 203, 207 (1987) quoting United States v. Butler.

297 U.S. 1.65 (1936). Nevertheless, this Court has noted that constitutional

limitations exist on Congress’ use of financial inducements which compel

State action:

fcontinued)

13

The essence of our federal system is that within the

realm of authority left open to them under the Con-

stitution, the States must be equally free to engage

in any activity that their citizens choose for the com-

mon weal, no matter how unorthodox or unnecessary

anyone else — including the judiciary — deems State

involvement to be.

Garcia, supra, 469 U.S. at 546.

State choice necessarily entails the converse of the above

statement — the freedom to choose not to engage in an activ-

ity. This Court has repeatedly upheld federal statutes that

affected State interests, in part because they maintained the

States’ freedom to refrain from the activity in which Congress

authorized State participation. '® No State, however, can with-

14 (continued)

Our decisions have recognized that in some circumstances the

financial inducement offered by Congress might be so coercive as

to pass the point at which “pressure turns into compulsion.” Stew-

ard Machine Co. v. Davis, supra, 301 U.S., at 590, 57 S.Ct, at 892.

South Dakota v. Dole, supra, 483 U.S. 211 (1987).

If coercive legislation under the Spending Clause is subject to limitations,

coercive legislation formulated under the guise of commerce regulation is

prohibited: “constitutional limitations on Congress when exercising its

spending power are less exacting than those on its authority to regulate

directly.” South Dakota v. Dole, Id. at 209.

15 See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. 452

U.S. 264 (1981) (Surface Mining Control and Reclamation Act allows States

to refrain from regulatory responsibilities in favor of federal regulatory

agency); Federal Energy Regulatory Com'n. v. Mississippi, 456 US. 742

(1982) (States may decline to accept conditions imposed by Public Util:

ties Regulatory Policies Act by abandoning regulation of the field), United

Transportation Union v. Long Island R. Co., 455 U.S. 678 (1982) (States

can avoid application of the Railway Labor Act by declining ownership of

an interstate railway); Garcia v. San Antonio Metropolitan Transit Author

ity, 469 U.S. 581 (1985) (State can avoid application of the Fair Labor Stan

dards Act by not requiring State employees to work overtime), South

Carolina v. Baker, 485 U.S. 505 (1988) (States may avoid issuing registered

bonds under Tax Equity Fiscal Responsibility Act by foregoing favorable

tax treatment afforded registered bonds).

14

draw from or alter either the federally regulated production

of nuclear power within its borders or the low-level radioac-

tive waste disposal program imposed by Congress.

For many years Congress encouraged the development

of nuclear power as a means of securing a safe, dependable,

domestic source of electrical generation. Vermont Yankee

Nuclear Power v. Natural Resources Defense Council, 435 US.

219, 557 (1978). Today, Connecticut is host to four nuclear

powered electrical generating stations, co-owned by a consor-

tium of utility companies located in different states and

providing electricity on an interstate transmission grid to all

ot New England. The nuclear power plants account for virtu-

ally all of the low-level radioactive hazard created in this

State. '® The State may neither preclude nor regulate the gener-

ation of low-level radioactive waste at these privately owned

nuclear power plants. 42 U.S.C. §2021(c).'” .

The inability of a State to prohibit or limit generation of

low-level radioactive waste — the source of the underlying

problem — accentuates the inequity of thrusting title, posses-

sion, liability and responsibility for disposal upon the States.

This inequity is compounded by the fact that Congress also

required the States to be responsible for disposal of and lia-

ble for, certain low-level radioactive waste generated by the

agencies of the Federal Government (42 U.SC. § 202 1e(2)\ (B)).

lhe 1985 Amendments, therefore, leave the States with

no real choices. The States cannot withdraw from the field.

rhey cannot restrict the generation of low-level radioactive

16 Por example, in Connecticut 99.9 percent of the low-level radioactive haz-

ard is produced by nuclear generating stations. Low-level Radioactive Wast

Management in Connecticut 1990, (1992) Connecticut Hazardous Waste

Management Service.

ia “Paragraph (3) emphasizes the continued Federal preemption of authority

to regulate Atomic Energy Act materials for radiological health and safety.

Senate Energy and Natural Resources Committee. Low-Level Radioactive

Waste Poliey Amendments Act of 1985, S Rep. No. 199. 99th Cong.. Ist

Sess. po & (1985)

waste and, even if they are not in the waste disposal business,

they must start disposing of such waste before January 1,

1996. If a State waste disposal facility is not in place by that

date the State, by Congressional edict, will own and possess

that waste. The forced acquisition of title by the States to pri-

vately generated low-level radioactive waste is no less an

anathema to State sovereignty than a directive by Congress

that States relocate their seats of government if a low-level

radioactive waste disposal site is not chosen by January 1,

1996. That Congress would have such powers under the Con-

stitution “would not be for a moment entertained” by this

Court. Coyle v. Smith, 221 U.S. 559, 565 (1911).

Hence, the 1985 Amendments direct and compel State

action in a manner never before approved — or even consid-

ered — by this Court. If the 1985 Amendments do not violate

the Tenth Amendment then, contrary to this Court's careful

statements in Garcia, there are no affirmative limits to Con-

gressional power under the Commerce Clause. If the 1985

Amendments are allowed to stand, similar coercive mandates

could be employed by Congress in other areas: States could

be required to assume the bad loans or financial losses of fail-

ing banks located within their States or to own and possess

all hazardous or toxic waste generated by private companies

operating within a State's borders. This Court in Garcia never

intended to sanction the destruction of State sovereign inter-

ests; on the contrary, it made clear that some structural Tenth

Amendment limits remain — limits that the 1985 Amend-

ments far exceed.

Il. THE NATIONAL POLITICAL PROCESS FAILED TO

PROTECT THE STATES FROM UNDULY BURDEN-

SOME FEDERAL REGULATION, AS ASSUMED BY

THIS COURT IN GARCIA.

In Garcia, this Court determined that the States must

look to the “procedural safeguards inherent in the structure

of the federal system” for protection against impairment of

16

their sovereign interests. Garcia, supra, 469 U.S. at 552.

According to this Court, “[t]he political process ensures that

laws that unduly burden the States will not be promulgated.”

Id. at 556. Of course, the Court recognized that the national

political process did not provide 2 100 percent guarantee

against unconstitutional Congressional action — “failings in

the national political process” were “possible.” Jd. at 554. The

Court, however, was not prepared to “identify and define what

affirmative limits the constitutional structure might impose

on federal action affecting the States under the Commerce

Clause” (/d. at 556) by “conjuring up horrible possibilities that

never happen in the real world.” /d. at 556, quoting New York

v. United States, 326 U.S. 572, 583 (1946).

In reviewing the 1985 Amendments, the Court of Appeals

adopted a totally inflexible Tenth Amendment analysis and

determined that under Garcia, the Constitution was neces-

sarily satisfied because the federal political process carried

the 1985 Amendments through Congressional debate and vote

to their final enactment into public law: “The political pro-

cess ensures that laws that unduly burden the states will not

be promulgated. Garcia, 469 U.S. at 556.” State of New York

vu. United States, supra, 942 F.2d at 120. Despite the unique

nature of the take title provision, the Court of Appeals did

not inquire — as this Court itself did in South Carolina v. Baker

~ whether Congress crossed the line, however fine it may be,

that separates the proper exercise of Commerce Clause power

from unconstitutional intrusion on State sovereignty.

In its decision, the Court of Appeals reviewed the history

of the 1985 Amendments and accurately noted that in both

the Low-Level Radioactive Waste Policy Act of 1980 and the

1985 Amendments “Congress acted only after robust debate

and a clearly articulated acceptance of NGA [National Gover-

nors Association| and other state-based recommendations.”

State of New York v. United States, supra 942 F.2d 120. How-

ever, when viewed in historical context, the legislative pro-

cess was far from a “paragon” of constitutional “success.” /d.

at 119. Instead, although the States’ interests were consid-

17

ered and many of the States’ suggestions adopted, in the final

analysis Congress acted in a manner which it knew was puni-

tive to the States!® and constituted an unprecedented assault

on State dignity and power.'®

The history of Congress’ action on the disposal of low-

level radioactive waste demonstrates that the political pro-

cess did not protect States’ sovereign interests in the manner

contemplated by Garcia. It was Congressional action which

encouraged the development of nuclear power and the prolifer-

ation of nuclear generating stations in this country. Vermont

Yankee Nuclear Power Company v. Natural Resources Defense

Council, 435 U.S. 519 (1978). “There is little doubt that a pri-

mary purpose of the Atomic Energy Act was, and continues

to be, the promotion of nuclear power.” Pacific Gas & Elec-

tric v. State Energy Resources Commission, 461 U.S. 190, 221

(1983). The federal government has also assumed authority

“through its power to regulate interstate commerce and pro-

vide for the national defense and general welfare” over “the

use of nuclear energy.” Simmons v. Arkansas Power & Light

Co., 655 F.2d 131, 135 (8th Cir. 1981).

Low-level and high-level radioactive wastes are by-

products of nuclear energy and Congress correctly perceived

18 «It is a very far-reaching, difficult, and punitive provision, but we meant

it to be precisely that.” 131 Cong. Rec. S.18113 (daily ed. Dec. 19, 1985)

(statement of Senator Johnston).

19 “Certainly, the Congress, as is each State, is free to exercise its powers

to designate sites and to construct and operate low-level waste disposal

facilities. But for Congress to mandate that the States must undertake the

burden of providing waste facilities without any provision for federal fund-

ing or face obligations, liabilities, or other sanctions imposed under fed.

eral law may raise Tenth Amendment problems. There does not appear to

be pertinent judicial precedent that has upheld in the face of Tenth Amend.

ment objections a federal mandate as intrusive on State sovereignty as

the one at issue here.” Constitutional Issues Raised By the Imposition of

Liabilities on the States Under a Proposed Amendment to the Low-Level

Radioactive Waste Policy Act of 1980, p. 5, Congressional Research Ser-

vice. Report to the House Committee on Energy and Commerce, Subcom-

mittee on Energy Conservation and Power dated December 16, 1985.

18

the disposal of such waste to be a federal problem. See Pacific

Gas & Electric v. State Energy Resources Commission, supra.

In 1980 legislative steps were taken to deal with the issue of

low-level radioactive waste. However, when the 1980 legisla-

tion did not work in the way it was inte nded, Congress — with

time running out — took an additional, unprecedented step

to coerce the States into solving the national low-level radio-

active waste disposal problem. The national problem became

a State responsibility. 42 U.S.C. §2021e(a)(1).

None of the early drafts of the 1985 Amendments Act.

subject to months of review and hearings, contained the take-

title provision*® On Tuesday, December 17, 1985, in the clos-

ing days of the session before Christmas recess, Senator Thur-

mond provided Congress with the take-title provision in the

form of a “Dear Colleague” letter. Senators Thurmond and

Johnston then formally proposed on Thursday, December 19,

1985, an amendment containing the take-title provision to the

bills being considered by the House and Senate.2! With no

new facilities constructed and threatened with the closure of

the three existing disposal sites, the 1985 Amendments Act —

with the take-title provision — passed both Houses of Con-

gress on December 19, 1985.22

20 The legislative history of the 1985 Amendments indicates that “[NJo

Senate Report was submitted with this legislation.” Low-Level Radioac-

tive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240, 1985 US.

Code Cong. & Admin. News ( 99 Stat. ) 2974, 2975. In fact, it does not appear

that any of the House reports accompanying H.R. 1083 (the House Bill

which initiated the legislative process on the 1985 Amendments) or related

House or Senate reports discussed the take title provision.

oe | Today, I am offering a complete substitute to H.R. 1083, the Low-level

Radioactive Waste Policy Amendments Act of 1985... The substitute that

is offered today is similar to the one that | circulated earlier this week with

a Dear Colleague letter ... This substitute is strongly supported by the

Governors of the sited States — South Carolina. Washington and Nevada.

131 Cong. Rec. S.18,105-6 (daily ed. Dec . 19, 1985 ) (statement of Senator

Thurmond).

22. -

_.|Ghiven the lack of time to adequately flush out the weaknesses inher-

ent in this package, and given the sited-State Governors’ unconditional

fcontinued)

19

In approving the “take title” provision, Congress ignored

“the special and specific position in our constitutional Sys-

tem” occupied by the States, transforming the States into

agents of the federal government and private nuclear waste

generators. The internal safeguards of the political process

envisioned by the Constitution to protect State sovereignty

did not work. Garcia, supra 469 U.S. at 556. Instead, in this

instance, the federal political process was specifically

employed to shift directly to the States a federal responsibil-

ity in a difficult political and regulatory area. One of the “hor-

rible possibilities that never happen in the real world,

happened here. New York v. United States, 326 U.S. 572, 583

(1946) (quoted in Garcia, 469 U.S. at 556).

The process-based protections relied on by this Court in

Garcia failed because the “|mJembers of Congress . . . elected

from the various States” voted, not as representatives of the

States, but as “Members of the Federal Government.’ Garcia,

469 U.S. at 564-565 (Powell, J. dissenting).

One can hardly imagine this court saying that

because Congress is composed of individuals, indi-

vidual rights guaranteed by the Bill of Rights are

amply protected by the political process. Yet, the posi-

tion adopted today is indistinguishable in principle.

The Tenth Amendment also is an essential part of

the Bill of Rights...

Garcia, 469 U.S. at 565 n. 8 (Powell, J., dissenting).?*

22 (continued) | |

endorsement for such an approach, we have no choice but to move this legis-

lation forward at this time.” Cong. Rec. $.18,114 (daily ed. Dec. 19, 1985)

(statement of Senator VicClure).

“3 Realizing the draconian nature of the take title provision, Congress nel-

ther imposed a take title provision nor any time frames upon Federal agen-

cies required to develop disposal capacity (42 USC. § 202 le(b). Che United

States Department of Energy estimates that disposal capacity for low-level

radioactive waste for which it is responsible shall not be available until

fcontinued)

20

Responsibility for disposal of low-level radioactive waste

entails not only political and legal liability but also horren-

dous economic burdens. The search for an appropriate site

for a waste disposal facility, the testing of potential sites, the

displacement of homeowners, farmers, and parkland, and the

construction of a proper and safe facility is an enormously

complicated, expensive, technologically difficult and politi-

cally explosive process. Imposition of that responsibility on

the States requires the States’ government to exercise judi-

cial, executive and legislative powers to fulfill federal policies,

encroaching on the limits of proper political responsibility and

shielding Congressional policy makers from accountability

for unpopular decisions. See Merritt, The Guarantee Clause

and State Autonomy: Federalism for a Third Century, 88

Colum. L.Rev. 1 (1988). While the States sought to partici-

pate in the solution to the low-level radioactive waste disposal

problem throughout the development of the 1980 and 1985

legislation, the States did not agree to subjugate themselves,

their residents or their treasuries to a process for resolving

a major national problem that sanctioned Congress’ evasion

of responsibility.

The federal political process, through the coercive nature

of the 1985 Amendments, upset the federal-state relationship

established by the Constitution.

Perhaps the principal benefit of the federalist system

is acheck on abuses of government power. “The ‘con-

stitutionally mandated balance of power’ between the

states and the federal government was adopted by

the Framers to ensure the protection of ‘our fun-

23 (continued)

the vear 2010. Report to Congress in Response to Public Law 99-240, 1988

Annual Report on Low-Level Radioactive Waste Management Progress.

Section 4.4.5, p. 172, US. Department of Energy (1989); See also Nuclear

Waste — Slow Progress Developing Low-Level Radioactive Waste Disposal

Facilities, p. 25 (January 1992), U.S. General Accounting Office. Report

to the Chairman, Committee on Governmental Affairs. U.S. Senate.

GAO RCED-92-61.

21

damental liberties.” Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87

L.Ed.2d 171 (1985) quoting Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 572,

105 S.Ct. 1005, 1028, 83 L.Ed.2d 1016 (1985) (Powell,

J., dissenting).

Gregory v. Ashcroft, 111 S.Ct. 2395, 2399 (1991).

As this Court recently reiterated in Gregory v. Ashcroft,

supra, 222 S.Ct. at 2399, one of the fundamental principles

of government is the Constitutional establishment of“... a

system of dual sovereignty between the states and the fed-

eral government.” The dual system of sovereigns embodied

in the Constitution reflected the framers’ distrust of an

omnipotent, federal government.

The powers delegated by the proposed constitution

to the federal government are few and defined. Those

which are to remain in the state governments are

numerous and indefinite. The former will be exercised

principally on external objects, as war, peace, nego-

tiation, and foreign commerce; with which last the

power of taxation will, for the most part, be con-

nected. The powers reserved to the several states will

extend to all the objects which, in the ordinary course

of affairs, concern lives, liberties, and properties of

the people, and the internal order, improvement, and

prosperity of the state. The Federalist No. 45, pp.

292-293 (C. Rossiter ed. 1961) (J. Madison).

The 1985 Amendments are inconsistent with the constitu-

tional balance of powers between the States and the federal

government. The coercive imposition on the States of congres-

sional policies that entail political and economic liabilities

threatens the fundamental concept of separate sovereign enti-

ties coexisting under a constitutional framework. The 1985

Amendments are destructive of State sovereignty and are the

result of the national political process failing to protect the

22

“States as States”. Garcia's strict standard for review of

claimed Tenth Amendment violations must be “tailored” in

this case “to compensate” for Congress’ failure to respect

State sovereignty.

CONCLUSION

The 1985 Amendments should be declared unconstitu-

tional.

Respectfully submitted,

STATE OF CONNECTICUT,

AMICUS CURIAE IN SUPPORT

OF PETITIONERS

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Counsel of Record

AARON S. BAYER

Deputy Attorney General

WILLIAM B. GUNDLING

Associate Attorney General

CHARLES H. WALSH

Assistant Attorney General