Hastings Law Journal


Adam S. Halpern


In New York v. United States, the Supreme Court set forth the rule that any federal law which directs state governments to enact specific legislation is per se unconstitutional. The Court characterized these federal laws as attempts to "commandeer" the States' governmental machinery. The Court reaffirmed and extended the so-called "anti-commandeering" principle in Printz v. United States, holding that Congress may not constitutionally pass a law that directs a State's administrative officials to take a particular action. In the wake of these decisions, two U.S. circuit courts of appeals have struck down as unconstitutional the Driver's Privacy Protection Act of 1994, which prohibits state departments of motor vehicles from releasing its drivers' personal information, except under specified conditions. Two other circuit courts have upheld the Act. The Supreme Court has granted certiorari in one of the cases, and a decision is expected during the October 1999 term. The author argues that the Driver's Privacy Protection Act is constitutionally valid because it does not commandeer state governments in the manner prohibited by New York and Printz. The author goes on to argue that the anti-commandeering principle articulated by the Court in these two cases has little support in constitutional text, history, or precedent, and that the policy arguments the Court has advanced in support of its newfound constitutional prohibition are unpersuasive.

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