Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York v. United States Revisited
Abstract
The Supreme Court's recent Tenth Amendment decisions, New York v. United States and Printz v. United States, have relied on the original understanding to hold that the Congress may not compel state officials to enact or administer federal programs. We present evidence from the field of taxation that raises questions about the Court's originalist approach to the Tenth Amendment. We explain why the results in New York and Printz are superficially supported by the history of the widely discredited system of requisitions that prevailed under the Articles of Confederation: the Constitution created a system of indirect and direct taxation to serve as the sources of revenue; it contains no mention of requisitions; and several proposed amendments that would have preserved a specific rule for requisitions went nowhere. But we also present evidence that both federalists and antifederalists believed that requisitions, although unwise as a matter of policy, were nonetheless permissible under the Constitution. We conclude that, although New York and Printz are unpersuasive on originalist grounds, their anti-commandeering principle might be justified on the basis of an alternative approach to constitutional interpretation. But the Court has not yet offered such an explanation.