Also known as: federal regulatory programs · federal program · regulatory program
Written by attorneys — see sources below.
A scheme of federal rules, standards, and enforcement mechanisms designed to regulate conduct in a particular area of national concern. The scheme typically includes directives, licensing requirements, or data-collection obligations that federal authorities seek to implement through state officials or resources.
Faith Fitzgerald, a licensed firearms dealer in State A, submits a purchase application that requires a federal background check. State police officers decline to perform the check because federal law directs them to use state personnel and budgets to administer the program. The dealer sues, arguing that the federal directive improperly conscripts state resources.
Fernando Farrell operates a low-level radioactive waste facility in State B. Federal legislation requires the state legislature to enact a disposal plan or take title to all waste generated within its borders. Farrell challenges the statute after the state refuses to comply, claiming the federal mandate commandeers state legislative processes.
Low-level radioactive waste is generated by many sources and must be isolated from humans for long periods. Historically the Nation relied on a small number of disposal sites. Concern about declining disposal capacity prompted Congress initially to adopt the Low-Level Radioactive Waste Policy Act of 1980. That statute declared a federal policy that each State is responsible for providing for disposal of waste generated within its borders. It authorized States to enter into regional compacts. That Act contained no penalties for nonparticipation. By 1985, with few operational sites and a looming crisis, Congress enacted the 1985 Amendments. The amendments were based largely on proposals of the National Governors' Association. They embodied a compromise among sited and unsited States. The 1985 Act directs each State to be responsible for disposal of low-level radioactive waste generated within the State. It authorizes States to enter into interstate compacts. For an additional seven years the three existing disposal sites were required to make capacity available for waste from any source. Sited States were permitted to exact graduated surcharges on out-of-region waste. After the transition period approved compacts could exclude out-of-region waste. The Act provides three types of incentives to encourage States to comply with its requirements. The monetary incentives authorize sited States to impose surcharges on out-of-state waste. They require the Secretary of Energy to collect a portion of the surcharge into an escrow account. They permit distribution of that fund to States that achieve the statutory milestones. The access incentives authorize sited States and regional compacts to increase and ultimately deny access to their sites to waste from States that do not meet federal deadlines. The take title provision requires a State that fails to provide for disposal by January 1, 1996. Upon request of the generator or owner of waste, the State must take title to and possession of the waste and be liable for damages suffered by the generator or owner as a result of the State's failure to take possession. The petitioners, New York and two of its counties, sought a declaratory judgment that the three incentives are inconsistent with the Tenth Amendment and with the Guarantee Clause of Article IV, § 4. The District Court dismissed the complaint. The Court of Appeals affirmed.
View caseFlagship Logistics burns coal at several power plants. The EPA adopts a rule requiring states to reduce emissions by shifting generation to cleaner sources or face federal penalties. State environmental officials must develop and enforce compliance plans using state staff and budgets under the federal program.
In 2015, the Environmental Protection Agency promulgated the Clean Power Plan rule addressing carbon dioxide emissions from existing coal- and natural-gas-fired power plants under Section 111(d) of the Clean Air Act. The rule identified three building blocks as the best system of emission reduction, including generation shifting from coal-fired plants to natural gas plants and from both to renewable sources. EPA projected that the rule would reduce coal's share of national electricity generation from 38% in 2014 to 27% by 2030, impose billions in compliance costs, raise electricity prices, retire dozens of coal plants, and eliminate tens of thousands of jobs. The Supreme Court stayed the Clean Power Plan in 2016. After a change in presidential administrations, EPA in 2019 repealed the Clean Power Plan, concluding that generation shifting exceeded its statutory authority, and replaced it with the Affordable Clean Energy rule, which relied solely on heat rate improvements at individual plants. Dozens of parties, including twenty-seven States, and private parties challenged the repeal and the ACE rule in the D.C. Circuit. The Court of Appeals held that EPA's repeal rested on a mistaken reading of the Clean Air Act and vacated both the repeal and the ACE rule. Following another change in administrations, EPA moved to partially stay the D.C. Circuit's mandate as to the Clean Power Plan while considering new rulemaking. The court granted the stay. Westmoreland Mining Holdings LLC, The North American Coal Corporation, and several States then petitioned for certiorari, which the Supreme Court granted.
View caseFrancois Fortier pays federal income taxes and objects to expenditures under a federal education grant program. He files suit alleging that the program exceeds congressional authority because it funds activities outside the enumerated powers. The complaint focuses on whether the regulatory scheme is a valid exercise of federal power.
Congress enacted the Elementary and Secondary Education Act of 1965. That statute authorized federal grants under Titles I and II to state and local educational agencies. Seven individuals who paid federal income taxes filed a complaint in the United States District Court for the Southern District of New York. They sued the Secretary of Health, Education, and Welfare and the Commissioner of Education in their official capacities. The complaint alleged that federal funds appropriated under the Act were being disbursed with the consent and approval of the defendants. Those funds were being used to finance instruction in reading, arithmetic, and other subjects in religious schools and to purchase textbooks and instructional materials for use in such schools. The complaint attacked the specific criterion of 20 U.S.C. § 241e(a)(2) that to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements in which such children can participate. The plaintiffs alleged that these expenditures constituted compulsory taxation for religious purposes in violation of the Establishment and Free Exercise Clauses of the First Amendment. They requested a declaratory judgment that the expenditures were unauthorized or alternatively that the Act was unconstitutional to that extent together with an injunction restraining approval of further expenditures for the challenged purposes. The defendants moved to dismiss the complaint on the ground that the plaintiffs lacked standing. A three-judge district court granted the motion and dismissed the complaint. The plaintiffs appealed directly to the Supreme Court pursuant to 28 U.S.C. § 1253 and the Court noted probable jurisdiction.
View caseFalcon Dynamics bids on a federal highway project but loses the subcontract to a firm certified under a federal regulatory program that presumes social and economic disadvantage based on race. The company sues, contending that the certification criteria in the federal program violate equal protection.
Adarand Constructors, Inc., a Colorado-based firm specializing in guardrail work, submitted the low bid for a subcontract on a federal highway construction project. Despite submitting the lowest bid, Adarand lost the subcontract to another firm that had been certified as a small business controlled by socially and economically disadvantaged individuals. The prime contractor received a financial incentive from the federal government for awarding the subcontract to the certified firm. This incident prompted Adarand to challenge the government's practice of providing such incentives based on race-based presumptions. The federal subcontracting program derives from the Small Business Act and the Surface Transportation and Uniform Relocation Assistance Act of 1987. The Small Business Administration administers programs that presume members of specified racial groups are socially disadvantaged, though the presumption is rebuttable and allows for individualized showings of disadvantage. Department of Transportation regulations require federal agencies to set goals for participation by disadvantaged businesses and establish certification procedures that can be performed by the SBA, state highway agencies, or other acceptable authorities. Prime contractors receive monetary compensation under subcontracting compensation clauses when they use certified disadvantaged business enterprises as subcontractors. Adarand sued federal officials in federal district court, alleging that the race-based presumptions violated the equal protection component of the Fifth Amendment. The district court granted summary judgment for the government. The Tenth Circuit Court of Appeals affirmed the district court's judgment. Adarand then petitioned the Supreme Court for review. Adarand sought declaratory and injunctive relief to prevent future use of the subcontractor compensation clauses in government contracts. To establish standing for this forward-looking relief, Adarand presented evidence that it was very likely to bid on additional government contracts offering similar financial incentives in the near future. The Supreme Court granted certiorari to consider the constitutional challenge.
View caseFatima Flores drives on State C highways after the state raises its drinking age to retain federal highway construction funds. The state legislature enacts the age requirement solely to comply with conditions attached to the federal regulatory program. A motorist challenges the state law as an invalid exercise of federal spending power.
South Dakota permits persons 19 years of age or older to purchase beer containing up to 3.2% alcohol under its state statutes. In 1984 Congress enacted 23 U.S.C. § 158. This statute directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise allocable from any state in which the purchase or public possession of any alcoholic beverage by a person less than twenty-one years of age remains lawful. South Dakota filed suit in United States District Court against the Secretary of Transportation. The State sought a declaratory judgment that the federal statute violates constitutional limitations on the spending power and violates the Twenty-first Amendment. The District Court rejected the State's claims. The Court of Appeals for the Eighth Circuit affirmed the District Court's decision in 791 F. 2d 628 (1986).
View caseA federal regulatory program is permissible when Congress regulates private parties directly or offers states a genuine choice through conditional spending. It becomes unconstitutional commandeering when federal law requires state officers to administer or enforce the program using state personnel and budgets without consent.
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Yes. Congress may attach unambiguous conditions to federal funds that are reasonably related to the purpose of the expenditure and do not violate independent constitutional prohibitions, leaving states free to decline the funds.
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Yes. Federal law may not direct state legislatures to enact specific rules or command state executive officers to perform federal enforcement tasks as part of a regulatory program.
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…does not permit Congress to commandeer the States' legislative processes by directly compelling them to enact and enforce a federal regulatory program; Congress must legislate directly upon individuals when it wishes to regulate. Nevertheless, Congress may encourage state compliance by permissible methods short of coercion. Under its…