Over at Watchdog.org, blogger Josh Peterson says that anti-commandeering is “disputable under the US Constitution’s Supremacy Clause…which defers authority to the federal government in the event a conflict over power takes place between the federal and local governments.”

This is a wild misunderstanding of what anti-commandeering is – and more importantly, what is considered a “conflict over power” between state and federal governments.

Here’s a quick overview, which I posted as a comment on the article itself:


Hey Josh, what part of anti-commandeering is disputable?

The supreme court has routinely held that the states don’t have to assist the feds – and this is how they’ve always held the issue. from 1842 to 2012.

The supremacy clause only comes in to play when two actors are trying to regulate the same behavior. for example, if Utah wanted lower environmental standards than Federal ones, the feds would claim “supremacy clause.”

The feds, in this case, are not trying to regulate the behavior of the local authorities, they’re merely offering money and asking for help. The locals of course, are considering bills to refuse that money and not give that help.

But since the feds have no legal power to force the states to help them carry out their acts – there is no supremacy conflict. The feds just have to figure out how to carry out those acts without the help.

Otherwise, what you’re saying is “supremacy clause” might authorize commandeering. It does not. It never has.


Michael Boldin

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